• Green Chemistry - The State of the States
  • March 13, 2015 | Authors: Nathan A. Cardon; Sheila A. Millar
  • Law Firm: Keller and Heckman LLP - Washington Office
  • From one corner of the country to the other - literally, from California to Maine - industry is facing a growing number of green chemistry initiatives, each giving states varying degrees of authority to regulate “chemicals of concern” in certain consumer products. Some laws apply only to “children’s products,” while other states have the authority to require reporting and to impose other restrictions on all products. Two states require alternatives assessments (AAs) and other potential regulatory actions resulting from these laws can include imposing new rules ranging from labeling to outright bans. The states that currently have green chemistry laws may grow, as a number of states expected to consider new or modified laws this year.

    These state efforts have typically focused on the mere presence of particular chemicals in products, often centered on chemicals that have come to the public’s attention due to a confluence of advocacy, media attention, incidents involving some chemical (sometimes the chemical in question, sometimes not), and perhaps new or rehashed studies. Attentions and concerns come and go with media cycles. Scientifically valid responses, however, are expensive, slow, and hard to understand for advocates and legislators who may not have a full appreciation of the intricacies of chemical risk assessments. These factors lead to questionable policies about chemicals, despite a well-intentioned and shared goal of preventing hazardous exposures to chemicals.

    While reform of the Toxic Substances Control Act (TSCA)[1] is viewed by some as a solution to the proliferation of state chemical bills, unwinding these state green chemistry laws will be a challenge absent very robust preemption language. Complicating the picture further is the concept, reflected in some proposed state green chemistry laws, that by adopting legislation that references The Interstate Chemicals Clearinghouse, or The IC2, legislation will have minimal impact, a suggestion not likely to hold up in fact. Equally ominous is a new trend that puts reporting fees in the mix.

    We discuss current and potential state green chemistry regimes below.

    Existing Green Chemistry Regimes: What’s New

    Green chemistry laws continue to change, with amendments, new legislation, and expanded regulations under consideration.
    • California. Predictably, the state that brought you Proposition 65 (and a proposed Proposition 65 “reform” initiative that will likely increase, not decrease, burdens on industry) led the wave of green chemistry laws with enactment of its Green Chemistry Initiative in 2008. [2] Despite being the first state to adopt a law, California has been late to the compliance and enforcement party, since the state’s Department of Toxic Substances Control (DTSC) only implemented regulations in 2013.[3] While most of the existing state green chemistry laws apply only to children’s products, the California regime is notable in that it covers all consumer products. It requires identification and prioritization of “chemicals of concern” in consumer products, designation of priority products, a requirement that affected businesses submit an alternatives analysis (AA) to use of the chemicals of concern in priority products, and the prospect of further regulation of such products. An interstate chemicals clearinghouse was also created, the IC2.
    • Last year, DTSC tentatively identified the first three priority products:[4]
    • Spray polyurethane foam (SPF) systems containing unreacted diisocyanates;
    • Children’s foam padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP); and
    • Paint and varnish strippers, and surface cleaners with methylene chloride.
    • DTSC also released its draft Priority Products Work Plan,[5] identifying a broad set of considerations for assessing chemicals of concern and priority products, and a broad set of products under consideration, including:
    • Beauty, personal care, and hygiene products;
    • Building products (with a focus on paints, adhesives, sealants and flooring);
    • Household and office furniture and furnishings (with a focus on flame retardants and stain resistant chemicals);
    • Cleaning products;
    • Clothing (including chemicals or chemical classes added to clothing);
    • Fishing and angling equipment; and
    • Office machinery (consumable products).
    • Washington. Washington State’s Green Chemistry Initiative[6] enacted through the Children’s Safe Products Act (CSPA) is the broadest and most well-developed of all the state green chemistry programs from a regulatory standpoint. The focus is on reporting of listed chemicals in children’s products; AAs are permitted but not mandatory. Washington elected in its implementing regulations to adhere to a phased-in reporting schedule under which the largest companies were required to begin reporting in July 2012, with smaller companies required to report later. [7] Intentionally-added listed chemicals present in any amount in children’s products must be reported. Listed chemicals present as contaminants at levels above 100 ppm must also be reported, unless the submitter has a manufacturing control program (MCP) in place and exercises due diligence to minimize the presence of the contaminant in the product or component. Children are defined as those under 12.
    The state is testing products and notifying companies that, in the state’s view, have failed to submit required reports. In these notifications the state has taken a restrictive view of when a MCP will eliminate the need for reporting the presence of contaminants above 100 ppm. The state appears to be of the view that to be effective, the MCP must be in place at the site of manufacturing and must establish controls for the specific listed chemical. This interpretation has already resulted in an expanded testing burden on some companies.
    Notably, an AA is not required in Washington, but the state’s Technical Alternatives Assessment Guidance Team (TAAG) has led the development of an Alternatives Assessment Guidance. The state is four years into a six-year roadmap for its green chemistry initiative: 2011 to 2013 was Phase I, “Creating Awareness and Capacity”; 2013 to 2015 is Phase II, “Building the Green Chemistry Program”; and 2015 to 2017 is Phase III, “Sustaining the Program.”
    Even with such a robust program, Washington is not sitting idly by: a bill supported by Governor Jay Inslee (D) (H.B. 1472) would require the state Department of Ecology to list 150 “priority Washington chemicals,” study 20 via chemical action plans (CAPs), and further require alternatives assessments for each use of a chemical determined to be of concern. Fire retardants have also emerged as a suspect group of chemicals; yet another bill would prohibit the sale of children’s products and furniture containing two flame retardants, TDCPP and TCEP, at more than 100 parts per million.
    When it was adopted initially, the CSPA set limits on lead, cadmium and phthalates; these limits were later determined to be largely preempted by the Consumer Product Safety Improvement Act of 2008 (CPSIA) but are still on the books. Given the absence of any scientific rationale for the 40 ppm cadmium limit, another bill, S.B. 5021, would scrap the previous 40 ppm limit on cadmium with regard to children’s jewelry and instead adopt ASTM F2923-14, the voluntary children’s jewelry safety standard. The cadmium limits in that standard were developed based on extensive testing by the U.S. Consumer Product Safety Commission (CPSC); the CPSC asked both the toy and jewelry industry adopt a solubility standard reflecting its research to address potential risks of exposure to cadmium in metal substrate in the toy and jewelry standards. [8] CPSC stressed that a total content limit could not be supported by its research. Incredibly, some opponents oppose S.B. 5021. They suggest developing a whole new assessment of risks of cadmium in children’s jewelry, despite the extensive technical work and recommendations by CPSC, adoption of similar requirements based on CPSC’s research in the mandatory, preemptive toy safety standard, ASTM F963, and the absence of any indications that children are being exposed to harmful levels of cadmium in children’s jewelry.
    Washington State is primed to continue to be a hotbed of green chemistry activity.
    • Connecticut. The Nutmeg State adopted a basic green chemistry law covering children’s products in 2008, requiring the state to identify “toxic substances” and recommend maximum permitted levels of such substances, as well as safer alternatives.[9] The law was primarily designed to set limits on the levels of lead in children’s products, and these provisions have largely been preempted by the federal Consumer Product Safety Improvement Act of 2008 (CPSIA). [10]The Connecticut law permits state participation in the interstate clearinghouse. A ban on cadmium in children’s jewelry containing cadmium in excess of 75 ppm, due to become effective July 1, 2014, was put on hold last year in anticipation of a report from a task force convened to recommend a path forward on cadmium in children’s jewelry.[11] Some Democrats in the legislature continue to push for a total content limit and expressed skepticism about the CPSC’s recommendations. Bills currently under consideration would adopt content limits, although proposals to incorporate solubility and actual exposure are also under consideration.
    Separately, the state is considering a law (Bill No. 5653) that would mirror Washington state’s current regime by directing several commissioners, led by the Commissioner of Public Health, to create a list of chemicals of high concern for children by January 1, 2016. The proposal also includes a provision that would allow the Commissioner of Public Health to require manufacturers to consult with the interstate clearinghouse on children’s products that contain chemicals of high concern.
    • Maine. Maine adopted “An Act to Protect Children’s Health and the Environment from Toxic Chemicals in Toys and Children’s Products” in 2008, [12] seeking to reduce the exposure of children and other vulnerable populations to chemicals of high concern by substituting safer alternatives when feasible. The state published a chemicals-of-concern list containing about 1,400 chemicals. BPA,[13] nonylphenol, and nonylphenol ethoxylates[14] were designated as priority chemicals early on, although a broader ban on BPA was vetoed by the governor in July 2013. [15] Since then, the state has added three additional chemicals to the list of chemicals of high concern: cadmium, mercury, and arsenic. [16] Last summer, the state’s Department of Environmental Protection (DEP) proposed to designate four phthalates (di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), and diethyl phthalate (DEP)) as priority chemicals whose intentional inclusion in certain product categories would require reporting by the manufacturer. [17] In a follow-up proposal released in January 2015, the DEP limited the covered products to children’s products “to make the originally proposed draft rule more consistent with currently effective rules implemented by the Safer Chemicals Program, and to better align the proposed rule with Maine law.” [18]
    Maine’s law is notable because it imposes an alternatives assessment obligation on affected companies. In 2012, an NGO group, Environmental Health Strategy Center (EHSC), pressured DEP to require packaging companies using BPA to submit a full alternatives assessment to the state. AAs were submitted and, predictably, EHSC filed freedom of information act requests under state law to obtain each company’s AA. The state ultimately concluded that the AAs were deficient in meeting the statutory criteria, and commissioned a third-party alternatives assessment, invoicing affected submitters for their proportionate share of the assessment. Ultimately, an AA was conducted by TechLaw on BPA in infant formula cans and baby food jar lids, which concluded that alternatives were available. [19]
    • Minnesota. Minnesota adopted a law that requires identification of “High Concern Chemicals” and “Priority Chemicals” in 2009.[20] The Chemicals of High Concern List had approximately 1,700 chemicals in 2013 after the addition of 34 chemicals and removal of 57 others;[21] and nine chemicals are listed on the priority chemical list, with tris(1, 3-dichloro-2-propyl) phosphate (TDCPP) and the chemical group nonylphenol (including its ethoxylates) under consideration for addition to the priority chemical list.[22] The law requires the Minnesota Pollution Control Agency to make recommendations on mechanisms to reduce and phase out the use of priority chemicals in children’s products and to promote the use of safer alternatives. Although the state is authorized to participate in an interstate clearinghouse, there are currently no reporting requirements under Minnesota law, although proposed legislation would change that.
    Recently-introduced legislation would create a reporting requirement for the nine currently designated priority chemicals (and any future chemicals designated as such). Reports would be required for the largest businesses (greater than $1 billion in gross sales) by July 1, 2017, with the smallest reporting businesses (those with gross sales $100,000-$5 million) reporting by July 1, 2020. The concept of a tiered reporting scheme is consistent with the approach in Washington. However, a fee of $1,000 would be assessed for each initial notice filed, which would “double[] for each report subsequently filed ... for the same chemical contained in the same children’s product,” with subsequent reports due every two years after the initial report.[23]
    Several chemical and product-category specific bans currently apply in Minnesota, however: BPA has been banned in formula containers and other children’s food containers,[24] and sippy cups;[25] cadmium has been banned in children’s jewelry in excess of a solubility limit;[26] formaldehyde has been banned from children’s products;[27] triclosan is scheduled to be banned in hand and body cleansers starting January 1, 2017;[28] added lead and mercury are banned in wheel weights;[29] and mercury-containing products and mercury-containing equipment used for balancing, dampening, or providing a weight or counterweight function are banned effective January 1, 2015.[30]
    • Vermont. Vermont is the most recent addition to the list of states adopting green chemistry initiatives.[31] This past summer, the governor signed into law a bill that requires manufactures of products with toxic chemicals to disclose chemicals that are present in children’s products that can cause harmful health effects. The law draws from Washington’s green chemistry law and lists its 66 “chemicals of high concern to children.” Initial reports from manufacturers notifying the state Department of Health (DOH) of the presence of listed chemicals that are either intentionally added or present as a contaminant in an amount greater than 100 ppm are due July 1, 2016, with further disclosures due biennially. A fee of $200 attaches to each report. No alternatives assessment is required under the law, but the state is authorized to enter into reciprocal data-sharing agreements with other states. The health commissioner must also provide a detailed description of the rulemaking process by July 1, 2017.
    The DOH released a proposed rule under the new law, which is similar to Washington’s in allowing reporting in ranges (= PQL but < 100 ppm; = 100 ppm but < 500 ppm; = 500 ppm but < 1,000 ppm; = 1,000 ppm but < 5,000 ppm; = 5,000 ppm but < 10,000 ppm; = 10,000 ppm). The rule would also permit reports to be submitted either by manufacturers or by trade associations, and would require notices to include the Global Product Classification (GPC) product brick description. New products introduced between reporting periods that are subject to notice requirements would be required to file a notice in the subsequent reporting period.[32]

    Proposed Green Chemistry Bills
    A number of green chemistry bills have been introduced in a variety of states. More recently, however, we see a new phenomenon: municipal bans and requirements. This makes the compliance landscape ever more challenging for businesses.
    • Florida. A bill, H.B. 607, would create a publicly available list of chemicals of high concern for children and pregnant women was introduced to the House on February 5, 2015. The list would identify chemicals that have been linked to childhood cancer, asthma, infertility, mental and developmental disabilities, and premature puberty. The bill, if passed, would take effect July 1, 2015, and would permit the state’s Department of Health to participate in the interstate clearinghouse. Notably, the Florida bill defines children to include those under 18, a major departure from both federal product safety law and from other state green chemistry laws.
    • Minnesota. Legislation recently introduced, S.F. 2099, would amend the existing green chemistry law and create a reporting requirement for the nine currently designated priority chemicals (and any future chemicals designated as such). Reports would be required for the largest businesses (greater than $1 billion in gross sales) by July 1, 2017, with the smallest reporting businesses (those with gross sales $100,000-$5 million) reporting by July 1, 2020. A fee of $1,000 would be assessed for each initial notice filed, which would “double[] for each report subsequently filed ... for the same chemical contained in the same children’s product,” with subsequent reports due every two years after the initial report.[33]
    • Mississippi. A bill, H.B. 175, would have abolished the knowing sale of certain children’s products containing phthalates, lead, and cadmium, but it died in committee in February 2015.
    • New York. A bill, S.B. 2408, would eliminate certain chemicals in children’s products, including arsenic, cobalt, benzene, lead, cadmium, mercury, and tris (2-chloroethyl) phosphate. The law would require manufacturers to report children’s products containing high priority chemicals. After January 1, 2020, the sale of children’s products containing chemicals identified as priority chemicals for one year or more would be prohibited in the state.
    A second bill, S.B. 2591, introduced to the Senate on January 26, 2015, would prohibit the use of formaldehyde in children’s products. The law, if passed, would take effect January 1, 2016.
    Separately, late last year, the Albany County Legislature adopted Local Law “J”, which bars sale in the county of children’s products and children’s apparel containing benzene, lead, mercury, antimony, arsenic, cadmium, and cobalt, apparently in any amount. This ban will take effect December 8, 2015; a legal challenge is likely. Certainly many aspects of this legislation should be viewed as preempted by CPSIA requirements on some or all children’s products.
    • Oregon. A bill, S.B. 478, was introduced in the Oregon Senate to create a list of chemicals of high concern for use in children’s products. The bill also would require manufactures to report products containing chemicals identified as chemicals of high concern at greater than de minimis levels. After submitting the third biennial report, manufacturers would be required to seek a waiver or remove the substance from the reported children’s product. The bill would also authorize participation in the interstate clearinghouse.
    • South Carolina. A bill, H. 3461, would prohibit the use of formaldehyde in children’s products: manufacture of children’s products containing formaldehyde would be banned beginning January 1, 2016, and the sale of all such products would be banned beginning January 1, 2017.
    Looking Forward: What to Expect in 2015
    While companies are evaluating new chemicals and ways to make products that reduce potential exposures to chemicals, the march to regulate the presence of chemicals in products appears to be continuing. Environmental, consumer, and other activists are working together to expand green chemistry mandates in other states.

    In addition, activists continue to seek modifications of existing laws to introduce an AA requirement, among other changes. AAs precipitate additional requests for restrictions, and introduce competitive complexities in discussions about chemical safety versus effectiveness and use. While reports of the presence of listed chemicals are by nature public, there are deep sensitivities regarding submittal of an alternatives assessment. The experience in Maine suggests that such reports will be requested through freedom of information act disclosures, and that the states will seek to release them to the extent possible. This also serves as a reminder of the importance of appropriate designations of confidentiality. An evaluation of relevant state law protections for confidential information, and the potential benefits of submitting an already-redacted version of an AA that excises business confidential data, will likely be more important as AA requirements expand.

    Reports of listed chemicals, like those in Washington, are publicly available and have led some customers - especially those that are private labelers or importers and thus may be the direct reporting obligation - to include restrictions in commercial agreements related to substances listed under various green chemistry laws. Despite the fact that most of the laws apply only to children’s products, some customers are also requiring that vendors provide assurances of compliance with regard to all products. Washington’s interpretation of a MCP has also caused some companies to greatly expand their testing programs for purposes of reporting, which has had a significant cost impact.

    There is some recognition, however, that state-by-state action may not best serve consumers. Recently, New York City’s Department of Consumer Affairs filed a petition with the CPSC asking it to study the 66 chemicals of high concern covered on Washington State’s current list.[34] The petition, backed by Sen. Kirsten Gillibrand (D-NY) and the Center for Environmental Health and Clean and Healthy New York, calls for assessments of the use of 66 chemicals in children’s products - the same 66 chemicals listed by Washington under its green chemistry law. Although the CPSC has already conducted studies of several of the chemicals (for example, cadmium and phthalates), the Commission’s response to the petition cannot be predicted with precision. Indeed, as of this writing, the CPSC has not even acknowledged the petition by posting it on its website, as it normally does.

    There is little doubt that renewed efforts to adopt other green chemistry laws in 2015 will have a growing impact on both the regulatory and public policy landscape and the commercial marketplace. There is also little doubt that a patchwork of laws creates added confusion for consumers and complexities for businesses. National harmonization of requirements based on thoughtful science would be helpful to all.

    [1] Pub. L. 94-469 (Oct. 11, 1976), as amended.
    [2] See Cal. Health & Safety Code §§ 25251-57 (A.B. 1879 and S.B. 509, Hazardous materials: toxic substances, Statutes of 2008).
    [3] California Code Regs. tit. 22, § 69501-69599 (effective Oct. 1, 2013).
    [4] DTSC, Draft Initial Priority Products List (Mar. 13, 2014), https://www.dtsc.ca.gov/SCP/upload/SCP-Fact-Sheet.pdf
    [5] DTSC, Safer Consumer Products Draft Priority Product Work Plan (Sep. 2014), https://www.dtsc.ca.gov/SCP/upload/FINAL-DRAFT-PPWP-140909.pdf.
    [6] Children’s Safe Product Act, Wash. Rev. Code § 70.240.
    [7] See Wash. Admin. Code § 173-334-110(2) (July 21, 2011).
    [8] CPSC Staff Report, Cadmium in Children’s Metal Jewelry (Oct. 2010), http://www.cpsc.gov//PageFiles/115615/cadmiumjewelry.pdf.
    [9] Child Product Safety Act, Conn. Pub. A. No. 08-106.
    [10] Pub. L. 110-314 (Aug. 14, 2008).
    [11] See Pub. A. No. 10-113 (act banning cadmium in children’s jewelry); Pub. A. No. 14-140 (delaying the effective date of Pub. A. No. 10-113 until 2016 and establishing a task force to study cadmium in children’s jewelry).
    [12] Me. Rev. Stat. Ann. tit. 38, § 1691 et seq.
    [13] 06-096 Me. Code. R. ch. 882, Designation of Bisphenol A as a Priority Chemical and Regulation of Bisphenol A in Consumer Products (Aug. 1, 2011).
    [14] Id. at ch. 883, Designation of the Chemical Class Nonylphenol and Nonylphenol Ethoxylates as a Priority Chemical (Jan. 9, 2011).
    [15] See Connecticut Governor’s Veto Message re L.D. 1181, An Act to Further Strengthen the Protection of Pregnant Women and Children from Toxic Chemicals (July 8, 2013).
    [16] See 06-096 Me. Code R. ch. 884, Designation of Cadmium as a Priority Chemical and Regulation of Cadmium in Children’s Products (June 2, 2014); id. at ch. 886, Designation of Mercury as a Priority Chemical and Regulation of Mercury in Children’s Products (June 2, 2014); id at. ch. 887, Designation of Arsenic as a Priority Chemical and Regulation of Arsenic in Children’s Products (June 2, 2014).
    [17] See Proposed 06-096 Me. Code R. ch. 888, Designation of Four Members of the Chemical Class Phthalates as Priority Chemicals (July 9, 2014).
    [18] See Proposed 06-096 Me. Code R. ch. 888, Designation of Designation of Four Members of the Chemical Class Phthalates as Priority Chemicals (Jan. 14, 2015), available at http://www.maine.gov/tools/whatsnew/attach.php?id=635465&an=2.
    [19] See Travis Kline & Mary Ruhter, TechLaw, Inc., Alternatives Analysis Report for Bisphenol-A in Infant Formula Cans and Baby Food Jar Lids (Dec. 2012), available at http://www.maine.gov/dep/safechem/documents/
    AAR-Report-December2012.pdf .
    [20] Minnesota Toxic Free Kids Act, §§ 116.9401-.9407 (May 2009).
    [21] See Minnesota Department of Public Health, Chemicals Excluded and Added to the Chemicals of High Concern List in 2013 (June 28, 2013), available at http://www.health.state.mn.us/divs/eh/hazardous/topics/
    toxfreekids/chclist/chc2013sup.xls .
    [22] See Minnesota Department of Public Health, Priority Chemicals Table (Mar. 28, 2014), available at http://www.health.state.mn.us/divs/eh/hazardous/topics/toxfreekids/pclist/pctable.pdf; Minnesota Department of Public Health, 2013 Minnesota Chemicals of High Concern Report (July 1, 2013), available at http://www.health.state.mn.us/divs/eh/hazardous/topics/toxfreekids/report2013.pdf.
    [23] See S.F. 2099 (introduced Feb. 23, 2009), available at https://www.revisor.mn.gov/bills/text.php?
    number=SF1099&version=0&session=ls89&session&under;year=2015&session&under;number=0 .
    [24] Minn. Stat. § 325F.174 (2014).
    [25] Minn. Stat. § 325F.172-.173 (2014).
    [26] Minn. Stat. § 325E.3891 (2014).
    [27] Minn. Stat. § 325F.176-.178 (2014).
    [28] Minn. Stat. § 145.945 (2014).
    [29] Minn. Stat. § 116.931 (2014).
    [30] Minn. Stat. § 116.92 (2014).
    [31] Vermont Act 0188, Act Relating to the Regulation of Toxic Substances (June 10, 2014).
    [32] See Proposed Ch. 6, Env. Health R., Subch. 7, Chemicals of High Concern in Children’s Products Rule (Feb. 13, 2015), available at http://healthvermont.gov/regs/documents/chemicals&under;high&under;concern&under;
    childrens&under;products&under;proposed&under;rule.pdf .
    [33] See S.F. 2099 (introduced Feb. 23, 2009), available at https://www.revisor.mn.gov/bills/text.php?
    number=SF1099&version=0&session=ls89&session&under;year=2015&session&under;number=0 .
    [34] New York City Department of Consumer Affairs to CPSC, Petition Urging Study of 66 Chemicals of “High Concern” (Dec. 15, 2014), http://www.nyc.gov/html/dca/html/pr2014/pr&under;121514.shtml.