The Product Safety Report©

August, 2013
Law Offices of David H. Baker LLC 
www.dhbakerlaw.com 

An Overview of State Laws Pertaining to Chemicals of Concern

Copyright 2013
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Background
A. FHSA. Since the 1960’s and the publication of Rachel Carson’s Silent Spring, there has been a movement in the U.S. to identify dangerous chemicals in consumer products and limit, or warn of, their use. The first major consumer product legislation in this area was the Federal Hazardous Substances Act (“FHSA”), enacted in 1960 and which generally banned the use of certain hazardous chemicals in consumer products, unless the products contained appropriate warnings. 15 U.S.C. Sections 1261-1278. The original lead in surface coating 600 PPM banning standard stems from the FHSA. 16 CFR Part 1303. The FHSA predates the formation of the Consumer Product Safety Commission (“CPSC”) and was originally administered by the Food & Drug Administration (which was then a much smaller agency and was housed within the Department of Health and Human Services).

B. LHAMA. There has been no other federal consumer product safety legislation directly regulating the use of chemicals in consumer products since the enactment of the FHSA. In an interesting parallel to today’s onslaught of state legislation relating to chemicals of concern lists, in the 1980’s, states began demanding a review of the chemicals in art materials purchased by state school systems. The quick enactment of more than a half a dozen conflicting so-called “state school purchase” laws resulted in a U.S. industry lobbying effort to push for an amendment to the FHSA called the Labeling of Hazardous Art Materials Act (“LHAMA”). 15 USC Section 1277. LHAMA, which was enacted in 1988, imposed a review process upon art materials. In a broad sense, LHAMA did to art materials, what the green organizations want to do to all children’s products. Art materials had to be reviewed for their chemical composition and if the products violated certain “Chronic Hazard Guidelines”, they could not carry a LHAMA compliant seal. Without the LHAMA conformance statement, there was no market for the art materials.

C. Other CPSC. Action In addition, from time to time, the CPSC would take action against a particularly egregious chemical in a consumer product by banning it under Section 12 of the Consumer Product Safety Act, or finding it a substantial product hazard under Section 15 of the Consumer Product Act. However, such action was very sporadic and very limited in scope. And despite requests from consumer groups to the CPSC Office of Compliance to take action on plastic lunch boxes and other products supposedly containing excessive lead, or containing phthalates, Compliance denied the requests.

D. The Precautionary Principle. Fast forward to the 21st century and we find the Europeans passing Directives before the European Commission based upon the “precautionary principle”. Whereas under U.S. law, a very specific statutory finding of hazard need to be made to ban a chemical or product, under the precautionary principle, the EC and certain member states began banning chemicals based upon a concern that the chemical could be dangerous. The best example of this phenomenon was the EC restriction on phthalates some five years before action was taken in the U.S. under the Consumer Product Safety Improvement Act. Of course, there is still a debate in the scientific community about the effect of phthalates on the human body, but regardless the chemical is essentially banned now in the U.S. Canada also embraced the precautionary principle with a particular delight. While CPSC and FDA continued to study phthalates and BPA, Health Canada quickly banned them both. Ironically, the FDA, last year, again concluded that there is not enough evidence to regulate BPA under the Food Drug and Cosmetic Act.

E. CPSIA. Although the passage of the Consumer Product Safety Improvement Act (“CPSIA”), imposed new limitations on lead in surface coating (decreasing the maximum to 90 ppm) and established new standards for total lead and phthalates (Sections 101 and 108, respectively, of P.L. 110-314 (2008)), it did not go as nearly as far as some green and consumer groups wanted. There continued to be rumbling from these organizations that many heavy metals and many chemicals are in consumer products and should be banned.

F. TSCA. Of course, the other well known U.S. statute relating to chemical use is the Toxic Substances Control Act (“TSCA”). 15 USC Sections 2601 et seq. TSCA gives the EPA authority to require manufacturers, importers and users of chemicals to report to EPA and to maintain certain records regarding their use of chemicals. The concept of the law is to give EPA a view of chemical use at the 40,000 feet level. The thresholds for reporting are very high and not all products are included. Moreover, there are numerous exemptions to TSCA (e.g., the so-called articles exemption). While the law probably seemed effective when it was enacted in 1976, unlike its counterpart in Europe (REACH), TSCA is very limited in scope. See discussion of REACH below. The green and consumer groups have been urging EPA to significantly change their implementation of the law. However, the rulemaking process has moved very slowly at EPA (the final rule on Chemical Data Reporting, previously called Inventory Update Reporting, began in 1986 and was just issued last year.) 76 Fed. Reg. 50816 (2011). In addition, efforts to amend TSCA in the Congress have moved very slowly. Former Senator Lautenberg (D-NJ), prior to his death in June 2013, had been pushing for a substantial revision of the law since 2010. There has been renewed interest in his bill since his death, but no action is likely to take place in 2013. See discussion of Safe Chemicals Act of
2011 below.

State Legislative Action

A. State v. Federal Action. As a result of the slow movement of regulation of chemicals at the federal level, several states begin considering state laws requiring companies to register or report if they used certain chemicals in their products. How this type of state action could come about in a governmental system with the supremacy clause and the interstate commerce clause in the U.S. Constitution, is hard to say. In the 1980’s, after Proposition 65 passed in California, there were several court and administrative actions arguing that it was pre-empted by federal law (all of which failed, for the most part). Similarly, in the 1990’s, when states began passing laws relating to small parts in toys and choking hazards, there was a court action in the 2nd Circuit to challenge the Connecticut law on pre-emption and commerce clause grounds (which also failed). There seems to be a belief today that a state, exercising its “police power” to protect the health and welfare of its people, can pass laws more restrictive than federal law, without violating the applicable federal law, or the commerce clause. As a result, there has been a proliferation of state bills, and state laws, on chemical and heavy metals issues.

B. REACH. Beginning in 2007, a handful of states began passing laws based upon the REACH model in Europe. REACH, standing for Registration, Evaluation, Authorization and Restriction of Chemical Substances, is a directive of the European Commission. EC 1907/2006. REACH generally requires manufacturers to review their products against a list of chemicals maintained by the European Chemicals Agency (“ECHA”) in Helsinki. REACH is being phased in over eleven years, but for most companies, implementation is well under way. It is my general understanding that the 90 or so chemicals currently in the ECHA database are largely the same chemicals targeted by these new state laws. Hence, many commentators in the U.S. refer to the state chemicals of concern laws as “min-REACH laws”.

C. Current State Laws Regulating Chemicals of Concern. There are only four state chemicals of concern laws currently in effect. The four “active” states are California, Maine, Minnesota and Washington State. However, similar laws have been considered, or are currently being considered in Connecticut, Illinois, Massachusetts, New York, Oregon, Rhode Island and Vermont.

The state laws which are already in effect differ in implementation and in definitions. Maine, Minnesota and Washington target children’s products. California’s law, when finally implemented, will apply to all consumer products. These laws also target different chemicals. For example, the Washington State list has 66 chemicals of high concern. The Maine list has over 1400 chemicals of concern

D. NEWMOA and the IC2 List. There is also now an organization coordinating the states’ efforts to regulate chemicals called NEWMOA for the Northeast Waste Management Officials Association. NEWMOA includes California, Connecticut, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Washington State. NEWMOA has been in existence since 1986 and has long been involved with the issue of mercury as a hazardous chemical. Through NEWMOA, these states have started the Interstate Chemicals Clearinghouse (referred to as IC2). One of the primary goals of IC2 is to establish a database of chemicals that the states agree should be considered high priority chemicals. Once the IC2 list is finalized, it may serve as a benchmark for the chemicals to look at initially (chemicals of concern, if you will) versus chemicals of high concern (a subgroup of chemicals of concern), or priority chemicals, a term that is used in some state statutes.

E. SVHC List. Finally, the EC Substances of Very High Concern (“SVHC”) Candidate List currently has 73 substances on it. And there are now 91 substances on the SVHC Registry of Intention. I suspect that the SHVC list will be a bellwether of chemicals of high concern, or priority chemicals, in the U.S.

Comparison of Current State Laws
I thought it would be useful to look at three key aspects of each of the state laws currently in effect – the definition (be it children’s product, or consumer product generally), the number of chemicals on the list and the earliest effective date. See Table on following page:

STATE	SCOPE OF DEFINITION	CHEMICALS ON LIST	EARLIEST EFFECTIVE DATE
California	All Products	Not known yet	Not determined yet. Green Chemistry Regulations in proposal stage
Maine	Children’s Product (under 12 years) and Consumer Products that may be exposed to fetus	Approximately 1400 CHC on List	Only two chemicals listed to date – Nonylphenol Ethozylates A and Bisphenol-A (BPA)
Minnesota	Children’s Product (presumably under 12 years of age – not defined)	Two lists: Approximately 1500 on CHC List; Some Then Move to Priority List – 7 on List at Present	No action required as of this date. Chemicals on Priority List are largely regulated by CPSC or FDA
Washington State	Children’s Product (under 12 years) Excludes sporting equipment	66 CHC on List	August 2012 was earliest compliance date for largest companies and tier one chemicals

A. California. California, as with many consumer initiatives, shot out of the box early with two laws relating to chemical regulation. A.B. 1879, which was adopted on September 29, 2008, established the California Department of Toxic Substances Control (“DTSC”). Among the responsibilities of the DTSC was to adopt by January 1, 2011, “…regulations to establish a process by which chemicals of concern in products, and their potential alternatives, are evaluated to determine how best to limit exposure or to reduce the level of concern posed by a chemical of concern. Section 1 of Legislative Counsel’s Digest to A.B. 1879. A Green Ribbon Science Panel was established by this law and this panel was to advise the Department.

At the same time, S.B. 509 was adopted on September 29, 2008, requiring DTSC to establish a Toxics Information Clearinghouse to collect information regarding “…chemical traits and environmental and toxicological end point data.” Legislative Counsel’s Digest to S.B. 509.

Emerging from these two bills was the proposed Green Chemistry Regulations which were the subject of countless meetings in Sacramento in 2009 and 2010. However, at the end of the process, in January 2011, when the regulations were due, a decision was made to withdraw the regulations developed and start over again. The consumer groups did not believe the regulations went far enough, and industry felt that the regulations went completely overboard.

Unlike the other three state bills, the California law applies to all consumer products – not just children’s products.

A new version of the Green Chemistry Regulations was subject to public comment on October 11, 2012, was reissued again on April 10, 2013 and is subject to another round of pubic comment. However, it is expected to be issued in final shortly. And without a doubt, these final Green Chemistry Regulations will be appealed by industry groups, and possibly consumer groups as well.

B. Maine. Maine has become a leader in consumer, green, fire and safety laws. Its original law, enacted in 2007 (the first chemicals of concern law in the U.S.) set forth a multi-step process of first identifying chemicals of concern and then narrowing it down to certain priority chemicals. The Maine has been amended once already to modify the scope and terms of the chemicals of concern list, taking out food, beverages, drugs, biologic, paper, forest products, pesticides, and certain consumer plastic playground equipment (you can almost see each lobbying group here). However, their list still contains some 1400 chemicals. The link to the new list in Excel format is:

www.maine.gov/dep/safechem/highconcern/index/

To date, two chemicals – Nonylphenol and Nonylphenol Exhoxylates, and BPA have been identified as priority chemicals. Nonylphenol is primarily used in detergents.

BPA is primarily used in plastics. Maine has already banned baby bottles and sippy cups containing BPA.

Under the Maine law, once a chemical is identified as a priority chemical, then the manufacturer of a children’s product must report to the State if it is using the chemical in its product(s). The State then reviews the formulation and advises if a safer alternative exists and should be used. The law permits the State to prohibit the sale of children’s products containing priority chemicals. I am not aware of any specific enforcement action (e.g., injunctions, seizures or fines). However, as noted above, Maine has banned the use of BPA in baby bottles and sippy cups.

C. Minnesota. The Minnesota Legislature passed the Toxic Free Kids Act in 2009. It requires the State of Minnesota to publish a Chemicals of High Concern List, and then ultimately, publish a Priority Chemicals List. The Chemicals of High Concern List was published on July 1, 2010 (and amended in October 2010) and can be accessed in PDF format at the following link:

www.health.state.mn.us/divs/eh/hazardous/topics/toxfreekids/chclist/mdhchc1010al.pdf

This list is 125 pages in length, containing approximately 1500 chemicals, and can be sorted by chemical name or CAS number. There is also a procedure for downloading the listing into Excel, like the Maine list.

Based upon third party sources, I have read that seven chemicals have moved from the Chemicals of High Concern List, to the Priority List, and include chemicals like lead, phthalates, cadmium, etc. It appears that Minnesota is taking no action with these priority chemicals at this time, other than simply listing them. I have also read that Minnesota’s view is that between the CPSIA and the FDA, most of these chemicals are already sufficiently restricted. For example, CPSC limits lead, bans phthalates and is in the process of banning the use of cadmium in jewelry. So it appears that Minnesota is taking no action with the new law.

My reaction to Minnesota’s action is that the liberal or green movements in each state watch each other very closely. Everyone wants to be first, and nobody wants to be last, or left out. So when California and Maine acted on chemicals of concern, Minnesota joined in. On their website page, they have a whole section on the Washington and Maine laws. However, now with a reduced budget, I suspect that nobody really wants to do anything with the new law.

D. Washington. Washington State enacted the Children’s Safe Products Act in 2008. Rev. Code Wash Section 70.240.010 et seq. The law required Washington to produce a list of chemicals of high concern for children’s products. Washington’s list contains 66 chemicals, which are set forth in their regulations. See link below:

www.ecy.wa.govlaws-rules/wac173334/x0904a.pdf

On July 21, 2011, Washington’s Department of Ecology released its final regulations implementing the Act. Those regulations became effective on August 21, 2011. Unlike the Maine law, which gives the State authority to ban products, the Washington law appears to be only a reporting law.

In the regulations, there is a table setting forth a series of reporting deadlines based upon company size and apparent risk. For example, for companies selling more than $1 billion in products, with children’s products that can be put into the mouth, or are mouthable for children under three, the very first reporting date was August 2012, The next reporting date is February 2013 for companies with sales of over $250 million and this same risk, and companies with sales of over $1 billion and children’s products intended to be in prolonged contact with a child’s skin, including jewelry.

Unlike any of the other state laws, there is a long list of exclusions in the law from the definition of children’s product. Section 70.240.10(3)(a)(xii).

The Washington State chemicals of concern law seems the most reasonable of all of the state chemicals of concern enactments to date.

Safe Chemicals Act of 2011
Many observers believe that the ultimate remedy to the proliferation of conflicting state laws with different chemicals of concern lists, is an overhaul of TSCA. A common strategy of consumer/activist groups, circa 1990 to present day, is to push for state laws in favorable jurisdictions (like CA, IL, MA, ME, MN, NY, OR, VT and WA) almost forcing industry to adopt a federal alternative. This exact process has been used with fire-safe cigarette legislation and novelty lighter legislation. So many pundits believe that if the Democrats pick up more seats in the House in the 2014 election, creating a Democratic majority in both houses of the Congress, Senator Lautenberg’s long pending “Safe Chemicals Act” will sail through the Congress. I believe that the only way industry will acquiesce to the legislation is if it is completely preemptive of state laws on the same subject, and even then, I believe there will be opposition.

The Safe Chemicals Act is over 170 pages in length and would obviously make many changes to TSCA. I am not an expert on TSCA, or the proposed amendments. However, in the most general sense, the Lautenberg bill would make TSCA much more like REACH and impose the burden on industry to prove that new chemicals are safe (now the burden is on EPA to prove them “unsafe”). Also, under the bill, EPA would be given authority to restrict production or use of a chemical, and the “articles” exception that most consumer products fall under, would be eliminated. The link to the bill is:

www.lautenberg.senate.gov/assets/SafeChem.PDF

So there is always the distant prospect that these state bills could be preempted by an amendment to the TSCA statute. However, for the next few months, the various state laws will reign supreme.

David H. Baker ([email protected])

August 19, 2013