Industry, Consumer Groups Tussle Over State Chemical Regulations on Consumer Products

Since enactment of TSCA in 1976, calls have mounted to reform the law and modernize its provisions. According to the Natural Resources Defense Council, the science on chemical safety has advanced to reveal previously unknown dangers, but the Environmental Protection Agency hasn’t been able to apply these lessons (here). About 62,000 chemicals were grandfathered in upon enactment in 1976, and EPA hasn’t been able to go back and examine the vast majority. For chemicals introduced since then, EPA’s review system means that once a new chemical is approved by the agency and placed on its Chemical Substance Inventory, most chemicals don’t get another look.

TSCA “makes it nearly impossible for [EPA] to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects,” said NRDC. “When TSCA became law in 1976, the goal was to ensure the safety of chemicals from manufacture to use and disposal. But weaknesses in the law have left the EPA largely unable to act on known health dangers or require testing on specific chemicals that may be unsafe,” it said. “To protect public health and allow the law to work as originally intended, we need new legislation that will reform and strengthen TSCA by shifting the burden of proof from the federal government to the chemical industry.”

Faced with a perceived lack of action on TSCA reform at the federal level, states have begun taking matters into their own hands. “Although Congress has failed to fix the law, states have established over 200 policies in the past 10 years to protect people from hazardous chemicals in consumer products,” said Safer States, an amalgamation of 28 mostly state-level consumer advocacy groups. While TSCA exempts most “articles” containing chemicals, including consumer products, the state laws specifically target them. “Toys, clothes, bedding, baby shampoo -- all can contain chemicals toxic to the brain and body,” said the group (here).

Laws already in effect in Maine and Washington require companies, including importers, selling products containing chemicals of concern to notify or report the presence of the chemicals. Washington’s law pertains only to children’s products (here), while Maine’s is broader in scope (here). Under the Maine law, the state can also ban a chemical for use in consumer products sold in the state. One such ban on bisphenol A in reusable food and beverage containers and baby food packaging and infant formula packaging took effect March 1.

California is currently implementing a law that would go a step further. The California Safer Consumer Products Regulations would not only require notification of priority chemicals and could result in bans, but it would also require “responsible parties” involved in the distribution of consumer products containing priority chemicals to conduct an “alternatives analysis” to determine if the product could be made safer. The law has already been passed, and the state is currently working on its list of priority chemicals, preliminarily identifying three on March 13 (see 14031820). The law’s requirements would first hit manufacturers, but if the manufacturer doesn’t comply then the importer would be obliged.

The alternatives analysis requirements in California’s law could prove costly. “If you’re a manufacturer of a priority product containing a chemical of concern in California, then not only do you have to notify, you also have to do the alternatives analysis, and that’s a very big deal, said Mark Duvall of Beveridge & Diamond, who also noted that the importer would be on the hook for the alternatives analysis if the manufacturer doesn’t comply. “It’s very expensive, it’s very consuming, and there’s a lot of trade secrets that need to be discussed in your presentation that you’re sending to the state government. The expectation is that in most cases the responsible entity is not going to file an alternatives analysis,” said Duvall. “Instead, it’s going to stop selling a priority in California that contains those chemicals, either by not selling that product at all or by changing the composition so that those chemicals aren’t there.”

State legislatures in Alaska (here), Connecticut (here), Massachusetts (here), Minnesota (here), New York (here), Oregon (here), and Vermont (here) are all considering putting similar laws on the books, according to a list on the Safer States website (here). New York’s law, which applies only to children’s products, passed the State Assembly March 18 and is now under consideration by the State Senate. The Vermont bill passed the State Senate on March 27, and is now headed to the Vermont House of Representatives.

“Vermont is now one of many in a rising level of state-level initiatives which created an unmanageable patchwork of chemical regulations across the country,” said the American Apparel & Footwear Association in a March 14 letter to Vermont Governor Peter Shumlin (here). “These regulations make it nearly impossible for a company to produce a product which meets all of these regulations at once,” it said. “Instead of a state-by-state approach, we believe that our nation’s federal chemicals management law must be updated to keep pace with scientific advancements and to ensure that chemical products are safe for intended use -- while also encouraging innovation and protecting American jobs,” said AAFA and other industry groups in a letter dated March 19 sent to Connecticut state legislators (here) .

Federal Bills May Preempt Patchwork of State Laws

Two bills in Congress would address some industry concerns related to state chemical regulations. The Chemical Safety Improvement Act (S-1009), introduced in the Senate in May 2013 (here), would update TSCA by requiring EPA to conduct safety evaluations for all chemicals and designate them as high or low risk, and would increase EPA’s leeway to require testing. Its counterpart Chemicals in Commerce Act was released Feb. 27 as a discussion draft (here) in the House of Representatives to gain consensus before formal introduction. It contains many similar provisions.

Neither bill would make major changes for importers of chemical substances, according to industry lawyers. “The most important provisions, especially on the import side, don’t change dramatically,” said one corporate counsel. “On the import side, not a lot would change,” said Mark Duvall. Exporters of chemicals would find relief from certification requirements in both the current House and Senate versions. Under the Chemicals in Commerce Act, exporters of chemicals designated as low priority wouldn’t have to certify at all, according to a blog post by Duvall (here).

One key difference relates to preemption of state laws. Under both the House and Senate bills, EPA action on a chemical would overrule state laws on that chemical. Under the House bill, that preemption extends to any state law, including the product safety laws passed and under consideration in California and other states. But under the Senate version, preemption would not apply to reporting requirements. That means under the Senate version California’s provisions on certification and alternatives analyses would likely stand even if EPA took action on a chemical, said Duvall. The question of what constitutes an EPA action is a contentious issue as well. The House version would take EPA’s required designation of all chemicals as either high or low priority as preempting any state laws on that chemical, said another industry lawyer.

State-level consumer advocacy groups oppose the preemption language. “As the bill is designed, once EPA takes action of any kind, it would effectively hamstring and sideline state leaders, offering no possibility for states to contribute to health-protective chemical policy,” said Safer States after the Chemicals in Commerce Act was released (here).

Some national consumer groups oppose current TSCA reform legislation as too limited. “As written, the [Chemical Safety Improvement Act] contains loose standards and vague wording that will allow industry to tie regulation of dangerous chemicals up in the courts for years to come," said the Center for Environmental Health after the Senate bill’s introduction (here). “The Lautenberg-Vitter bill in its current form would be in many ways as ineffective as current law and in some regards even worse,” said NRDC on the Chemical Safety Improvement Act (here). NRDC Senior Attorney Daniel Rosenberg called the House Chemicals in Commerce Act a “bill only industry could love” (here).

On the other side, support from industry has been overwhelming. A letter from a wide variety of trade associations including the American Apparel & Footwear Association, Consumer Electronics Association, Hardwood Plywood and Veneer Association, National Association of Manufacturers, National Retail Federation, and the U.S. Chamber of Commerce called the Chemicals in Commerce Act discussion draft a “solid foundation for introducing legislation that will make significant improvements to TSCA and garner the bipartisan support needed for passage in the House. With this proposal, and the bipartisan bill in the Senate, for the first time we have a historic opportunity to make fundamental changes to TSCA that allow the U.S. to continue to lead the way in safety managing chemicals, driving innovation, and creating jobs,” said the trade groups. -- Brian Feito