In recent years, manufacturers have seen a marked increase in state regulation of chemicals in consumer products. While the regulation of hazardous and toxic chemicals in consumer products is certainly not a new concept, particularly on the federal level, the proliferation of state regulation creates many new regulatory burdens and potential pitfalls that manufacturers must account for to avoid costly violations and regulatory scrutiny.
At the state level, the most significant new regulations are California’s Safer Consumer Products Regulations (the “CSCPR”). The CSCPR were passed in 2013 and the implementation of these new regulations is ramping up. Under the CSCPR, the California Department of Toxic Substances Control (“DTSC”) is charged with identifying hazardous, or potentially hazardous, chemicals being used in consumer products, and then forcing manufacturers to at least consider whether safer alternatives exist. Following this “alternatives analysis,” the DTSC has the authority to implement a wide variety of measures designed to restrict the use of the hazardous chemical, including an outright ban under certain circumstances. The DTSC identified the first three products for which it will require an alternatives analysis (known as “priority products”) in March 2014. This list is expected to be finalized and the alternatives analysis requirement triggered later this year.
Other states have taken a less aggressive approach, requiring only that manufacturers notify state agencies when certain hazardous or potentially hazardous chemicals are used in their consumer products. For example, the state of Vermont passed a law in June of 2014, which requires domestic manufacturers, private labelers, and importers of record to notify the state when any “chemical of high concern to children” (“CHCC”) is used in any consumer product designed for use by children under the age of 12. The first such notifications are due by July 1, 2016 and, in 2017, the Vermont Commissioner of Health is expected to start recommending certain CHCCs for further study by a working group and potential restrictions or a ban on their usage. Similar laws are already in place in other states, including Washington and Maine, with reporting requirements taking effect over the last several years.
These state laws impose potentially burdensome reporting requirements and create the possibility that certain chemicals commonly used by consumer-product manufacturers will be significantly restricted or even banned. In order to keep up with the changing regulatory environment, manufacturers need to be aware of these regulations and consider carefully how new requirements may impact their businesses. Currently, the primary burden imposed by new state regulations consists of reporting requirements. However, that burden will only grow as further study of chemicals used in consumer products is performed and regulators begin to implement their (in some cases considerable) authority to dictate how consumer-product manufacturers operate their businesses.