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State Green Chemistry Initiatives Take Root: Are You Ready?

Date: Aug 04, 2010

The success of publications such as "Slow Death by Rubber Duck"[1] highlight one of the seminal drivers behind the green chemistry movement: whether the presence of toxic chemicals in everyday products creates risks to consumers, especially children. While there is a political element behind the focus on chemicals in consumer products, linked to a determination to overhaul the federal Toxic Substance Control Act (TSCA) to regulate toxic chemicals in the U.S. marketplace, support for these initiatives by consumers also stems from a deeply embedded fear of chemicals and unfamiliarity with standard health and environmental risk assessment concepts.

Predictably, California—the state which brought you Proposition 65—is leading the green chemistry regulatory way in eliminating certain chemicals in consumer products through its "Draft Regulation for Safer Consumer Products." These regulations are intended to implement its "Green Chemistry Initiative" by the beginning of next year. The aim of the initiative is to create a comprehensive list of toxic chemicals used in consumer products and replace them with "safer" and "greener" alternatives. However, California is by no means the only state with a green chemistry statute. Connecticut, Maine, Minnesota and Washington have all passed green chemistry initiatives, and similar legislation is pending in several other states.

In theory, the concept of green chemistry is commendable: provide a rational, scientific framework for states to conduct risk assessments of existing and alternative substances used in consumer products. In reality, recent state developments demonstrate that the green chemistry movement may simply provide another framework to implement substance-specific bans that ignore science and sound risk assessment principles. Indeed, the lesson of the Consumer Product Safety Improvement Act of 2008 (CPSIA) is that reflexive adoption of chemical content limits or bans on specific materials does not necessarily enhance safety.

Given current trends, green chemistry initiatives will have the potential to affect every retailer, manufacturer and distributor of consumer products in the U.S., particularly children's product manufacturers. Affected companies should, at a minimum, begin to evaluate the new obligations imposed by the laws. More importantly, business organizations should actively engage in green chemistry rulemaking and chemical prioritization activities. For some consumer product makers, deselection of certain chemicals used in their products will require reconfiguration, retesting and potentially involve tradeoffs on other safety elements. For example, eliminating lead from products, as required by CPSIA, can result in a loss of strength properties in the material, creating a higher risk of breakage or failure. For other companies, however, green chemistry initiatives may indeed result in product deselection if an essential building block chemical is on a priority list.


Current Legislation


Green chemistry legislation has been enacted in five states.

State

Products Implicated

Description

California[2]

All consumer products

Requires identification and prioritization of "Chemicals of Concern" in consumer products, evaluation of alternatives, and regulation of consumer products containing "Chemicals of Concern."

Requires adoption of an interstate chemicals clearinghouse.

Implementing regulations to be adopted by January 1, 2011.

Connecticut[3]

Children's products

Requires the state to identify "toxic substances" and recommend maximum permitted levels of such substances, as well as safer alternatives.[4]

Permits participation in an interstate clearinghouse.

Maine[5]

Children's products

Requires identification of "High Concern Chemicals" and a ban on children's products containing "Priority Chemicals" if safer alternatives exist.

Maine has already published a list of "High Concern Chemicals" and must designate two "Priority Chemicals" by January 1, 2011.

Permits participation in an interstate clearinghouse.

Minnesota[6]

Children's products

Requires identification of "High Concern Chemicals" and "Priority Chemicals."

Minnesota has already published a list of "High Concern Chemicals" and must publish an initial list of "Priority Chemicals" by February 1, 2011.

Requires the submission of a report to the state legislature by December 2010 that outlines ways to reduce and phase out the use of certain chemicals in children's products and promote the use of safer alternatives.

Permits participation in an interstate clearinghouse.

Washington[7]

Children's products

Requires the state to identify a list of "Priority Chemicals" and draft policy options to address the use of the chemicals.

Impact on Children's Product Manufacturers

While California's law has the potential to affect all consumer product manufacturers and retailers, the use of chemicals in children's products is the clear target of each state green chemistry law enacted to date. The central theme of the initiatives is to require greater disclosure by manufacturers and retailers of the chemicals used in children's products, as well as their risks. Under each initiative, states must identify and prioritize chemicals of concern in children's consumer products, with the ultimate aim of regulating the use of these chemicals in those specific products. Politically, of course, it is easier to obtain support for protecting children, and adoption of laws on children's products have a natural spillover to the entire marketplace.

Reporting Requirements

To assist in the regulatory process, manufacturers of products containing priority chemicals will be subject to reporting requirements. For example, both Maine's and Washington's statutes, as well as the current draft of California's implementing regulations, require that manufacturers of children's products containing priority chemicals notify state authorities. California's and Maine's statutes also require that manufacturers perform an alternatives assessment for safer alternatives.

Prioritization Factors and Regulatory Responses

With rulemaking currently underway in California, Maine and Washington, there are concerns whether the procedures and criteria for prioritizing chemicals of concern will be based on sound science and risk assessment principles. Each statute contains a broad list of factors for categorizing high concern and/or priority chemicals. A few identification factors include the volume of the chemical in commerce in the state, whether the substance is persistent and bioaccumulative, whether a substance has been shown to be present in a consumer product used in the home, or whether a substance has been shown to be present in human blood. Any number of chemicals can easily satisfy these statutory criteria. Moreover, there is a real danger that information on chemicals will be taken out of context. For example, information from biomonitoring studies that is not put into a proper health context could quickly result in unnecessary protective measures to ban certain chemicals.

Thus far, there has also been little agreement among stakeholders on how to assure that product safety considerations and economic impacts (i.e., cost of alternatives, ease of substitutability, costs of reformulation, ability of the reformulated product to meet acceptable quality and safety requirements, and costs of additional testing) are factored into the review of alternatives to identified priority chemicals. For children's consumer product manufacturers, the CPSIA regime requires third party testing by accredited conformity testing bodies to assure that all children's products meet applicable requirements under laws administered by the Consumer Product Safety Commission (CPSC). The testing regime establishes that any "material change," such as a reformulation, requires additional testing, so changes in formula necessitated by green chemistry laws will add to CPSIA compliance costs as well.

While many states hope to coordinate their green chemistry efforts through interstate chemical clearinghouses,[8] states are taking different approaches on how to use the information that is made available through these avenues. Adding to the problem, the permitted regulatory responses under each state initiative vary. For example, California's law permits the state to restrict or ban chemicals of concern in priority consumer products, mandate labeling, or "any other outcome." Thus, states may easily take inconsistent actions on chemicals and priorities, leading to a patchwork quilt of disparate state laws. Illinois, for example, adopted legislation requiring that certain children's products contain a label if the product has total lead content in excess of 40 ppm, although CPSIA establishes national standards for lead content in children's products. While such rules implementing the law have not yet been finalized, if the rules are finalized, products deemed entirely safe under federal law will have to bear a warning label in the state. Labeling laws like the Illinois lead labeling law or Proposition 65 are earlier manifestations of green chemistry approaches, the theory being that companies will eliminate or reduce chemical content to avoid labeling obligations. In other states, like Connecticut, chemical-specific legislation—such as recently-adopted limits on total cadmium in children's jewelry that take effect in 2014—powerfully illustrate the absence of scientific rationality in discussions about such limits. The legislation will likely result in a ban on fine jewelry for children, although cadmium has been used in higher amounts in these products with no reports of any adverse health effects.

Pending Legislation

While affected companies are grappling to understand the enacted green chemistry laws and the implications of state implementation strategies, similar legislation is pending in various other states. For example, New York introduced green chemistry legislation in March 2010.[9] The bill is similar to currently enacted state initiatives, as the proposal requires identification and prioritization of chemicals used in children's products. However, the initial proposed automatic sales prohibition in the legislation was alarming.

As initially drafted, the New York bill would have banned the sale of certain children's products containing priority chemicals two years after enactment of the law. As noted above, banning a priority chemical in California is only one of several options under the law, and in Maine, banning a chemical is only possible when a safer alternative exists. The original New York proposal, however, would have resulted in a ban that failed to address whether safer alternatives even existed. While the bill has since been revised to require the review of alternatives prior to implementation of a ban, the proposal highlights the need for affected parties to remain active in the legislative process and to ensure that proposed legislation incorporates risk appropriate assessment principles. Green chemistry legislation is also pending in Illinois, Massachusetts, Michigan, Oregon and Vermont.

Conclusion


Of course, assuring that chemicals and products are reasonably safe is of critical importance to all. It makes good sense to review the existing regime of chemical regulation along those lines, and to adopt thoughtful policies that remain grounded in science. Overreacting by adding multiple layers of state regulation and forcing changes to substances that companies are using through a political response to the chemical scare of the day is not the best way to promote these goals from a safety, policy or economic standpoint.

Consequently, manufacturers and retailers of consumer products should not overlook the impact of the green chemistry movement in its broadest form. Regardless of whether TSCA reform legislation is adopted, green chemistry initiatives are not going away, and indeed, are likely to take root in a number of additional states. Affected companies must be prepared to understand the new obligations posed by the laws and potential implications to their businesses, such as the full disclosure of product ingredients, potential labeling requirements, substance restrictions or possible outright bans. Understanding the impact of these laws should help companies remain involved in the development of these initiatives by commenting intelligently and specifically on proposed legislation, rulemakings and the identification of priority chemicals, and promoting reliance on sound science and risk assessment principles.

For more information on Green Chemistry and product safety, contact Sheila A. Millar, millar@khlaw.com; JC Walker, walker@khlaw.com; or Alisa A. Karlsons, karlsons@khlaw.com. For more information on Green Chemistry and other California requirements, contact Leslie T. Krasny, krasny@khlaw.com; Daniel J. Herling, herling@khlaw.com; or Diana G. Graham, graham@khlaw.com.



[1] See Rick Smith and Bruce Lourie, "Slow Death by Rubber Duck: How the Toxic Chemistry of Everyday Life Affects Our Health" (2009).

[3] Connecticut's green chemistry legislation, Public Act No. 08-106, is available at: http://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp ?selBillType=Bill&bill_num=5650&which_year=2008.

[4] The Connecticut law was primarily designed to set limits on the levels of lead in children's products. These provisions have largely been preempted by CPSIA. There has been little activity concerning the provisions of the law related to green chemistry.

[5] Maine's "Toxic Chemicals in Children's Products" law is available at: http://www.maine.gov/dep/oc/safechem/index.htm.

[6] Minnesota's "Toxic Free Kids Act" is available at: http://www.health.state.mn.us/divs/eh/hazardous /topics/toxfreekids/index.html.

[7] Washington's "Children's Safe Product Act" is available at: http://www.ecy.wa.gov/programs/swfa/cspa/.

[8] These clearinghouses are designed to identify, organize and manage available data on chemicals, including information on uses, hazards, risks, and environmental and health concerns, as well as provide information on safer alternatives.

[9] Currently, the bill is being reviewed by the Senate Rules Committee. Complete text of the bill (Senate Bill 7070) is available at: http://open.nysenate.gov/legislation/bill/S7070.