Colorado § 35-9-120 - Prohibited acts - deceptive trade practice.

§ 35-9-120. Prohibited acts - deceptive trade practice.

(1) It is unlawful and a violation of this article for any person:

(a) To distribute within the state or deliver for transportation in intrastate commerce or transport between points within this state through any point outside this state any of the following:

(I) Any pesticide or device which has not been registered pursuant to the provisions of this article and any rules and regulations adopted pursuant thereto;

(II) Any pesticide or device if any of the claims made for it or any of the directions for its use or any other labeling differs from the representations made in connection with its registration or reregistration; except that, at the discretion of the commissioner, a change in the labeling or formula of a pesticide may be made within a registration period without requiring reregistration of the product;

(III) Any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container and there is affixed to such container a label bearing the information required in this article and the rules adopted pursuant to this article, and, if there is an outside container or wrapper of such retail package through which the required information cannot be clearly read, there is an additional label on such container or wrapper containing such information;

(IV) Any pesticide which is adulterated or misbranded, or any device which is misbranded;

(V) Any pesticide in any container which violates rules adopted pursuant to this article or in any container which is unsafe due to damage;

(b) To distribute any pesticide to any person who is required by law or rules adopted under such law to be certified, licensed, or have a permit to use or purchase the pesticide unless such person or the person's agent, to whom sale or delivery is made, has a valid certification, license, or permit to use or purchase the kind and quantity of such pesticide sold or delivered; except that, subject to conditions established by the commissioner, such permit may be obtained immediately prior to sale or delivery from any person so designated by the commissioner;

(c) To detach, alter, deface, or destroy, wholly or in part, any label or labeling provided for in this article or rules adopted pursuant thereto, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this article or the rules adopted pursuant thereto;

(d) To use or cause to be used any pesticide contrary to the rules and restrictions adopted pursuant to section 35-9-118 (2)(c);

(e) To use for the person's own advantage or to reveal, other than under the authority of section 35-9-109, any information relative to formulas of products acquired by authority of section 35-9-107 (1)(d);

(f) To perform any of the acts or to hold oneself out as being qualified to perform any of the acts for which licensure as a pesticide dealer is required without possessing a valid license to do so;

(g) (I) To make false, misleading, deceptive, or fraudulent representations through any media regarding:

(A) Pesticides or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness; or

(B) Devices or any aspect of their use, including, but not limited to, representations regarding their safety and effectiveness.

(II) It is a false representation to make claims as to the safety of any pesticide or device or their components or ingredients, including, but not limited to, such claims as "safe", "noninjurious", "harmless", or "nontoxic to humans and pets", with or without such qualifying phrases as "when used as directed" and "when properly applied".

(h) To refuse or neglect to comply with the provisions of this article;

(i) To refuse or neglect to comply with any rule adopted under this article, or any lawful order of the commissioner;

(j) To impersonate any state, county, or city inspector or official;

(j.5) To make a false statement in any invoice, record, report, or application required under this article or any rule promulgated under this article; or

(k) To make any fraudulent statements in any confidentiality agreement authorized pursuant to section 35-9-109 or to violate any of the provisions of said agreement.

(2) It is a violation of this article 9 for any pesticide dealer:

(a) To store pesticides in a manner inconsistent with labeling directions, except as provided by law, or in a fraudulent, faulty, unsafe, or negligent manner;

(b) To dispose of empty pesticide containers or unused materials inconsistent with labeling directions or in a negligent or unsafe manner;

(c) To permit the use of the pesticide dealer's license by persons to whom the license was not issued;

(d) To fail to maintain records and file reports as required by this article or rules adopted pursuant thereto;

(e) To fail to notify the commissioner of any change of address within thirty days after said change of address;

(f) To make a false statement of fact in any invoice or any record, report, or application required by this article or by any rule adopted pursuant thereto; or

(g) To sell a pesticide without having an appropriately licensed pest control consultant supervising said sale.

(2.5) It is unlawful and a violation of this article for any refiller:

(a) To fail to maintain any records or reports required under this article or any rule promulgated under this article;

(b) To make a false statement of fact in any record or report required by this article or any rule promulgated under this article; or

(c) To fail to clean a refillable container in accordance with residue removal procedures specified by the commissioner by rule.

(3) Any violation of paragraph (a), (c), (f), or (g) of subsection (1) of this section is a deceptive trade practice and is subject to the "Colorado Consumer Protection Act", article 1 of title 6, C.R.S.

Source: L. 90: Entire article R&RE, p. 1569, § 1, effective June 7. L. 2010: (1)(j) and (3) amended and (1)(j.5) and (2.5) added, (SB 10-034), ch. 376, pp. 1769, 1770, §§ 15, 16, effective July 1. L. 2025: IP(2) and (2)(c) amended, (HB 25-1084), ch. 24, p. 101, § 38, effective August 6.

Editor's note: This section is similar to former § 35-9-103 as it existed prior to 1990.

ANNOTATION

Subsection (1)(g) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations violate the first amendment to the U.S. Constitution by prohibiting manufacturer from making true and non-misleading claims on its product labels and in its advertising. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).

Subsection (1)(g) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations impose an undue burden on interstate commerce and thus violate the dormant commerce clause of the U.S. Constitution by prohibiting manufacturer from making true and non-misleading claims on its product labels and in its advertising. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).

Subsection (1)(g)(II) and rules 4.2(b)(2) and 6.1(i) of the Colorado department of agriculture regulations conflict with § 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which forbids a state to impose requirements for labeling different from those required under FIFRA, and its implementing regulations as to labeling requirements. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).

FIFRA also preempts subsection (1)(g) to the extent that it purports to bar advertising claims that merely repeat claims made on pesticide labels. Bioganic Safety Brands, Inc. v. Ament, 174 F. Supp. 2d 1168 (10th Cir. 2001).