Green Chemistry in 2017: The State of the States

Green Chemistry in 2017: The State of the States[1]

Since our last report covering state-level green chemistry initiatives, more states added green chemistry regimes, and some states that already had green chemistry legislation in place issued updates. In many cases, these changes will impose additional burdens on consumer product makers. 

State laws vary, which makes the landscape confusing. Some state laws apply only to children’s products, and others potentially affect all consumer products. Typical green chemistry laws cover a variety of specific chemicals and require covered companies to report to the state the identity of listed chemicals present in covered products. Reports must include not just listed chemicals that are intentionally added at any level, but also those inadvertently present as a contaminant above a threshold, generally set at 100 parts per million (ppm). Other state green chemistry laws require submission of an “alternatives assessment” (AA) in addition to reporting. Still, others give states the authority to compel companies to completely eliminate chemicals in their products after a certain period.[2]   

The growth of state green chemistry laws and state chemical bans has been attributed, at least in part, to a national chemical approval regime that many felt was outmoded. Last year’s enactment (after years of negotiation) of a law reforming the nation’s primary chemical safety regulation, the Toxic Substances Control Act (TSCA), may eventually slow or halt the expansion of new requirements. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. 114–176) (commonly referred to as the Lautenberg Chemical Safety Act or LCSA), passed on June 22, 2016, clarified EPA’s authority under TSCA. LCSA provides the U.S. Environmental Protection Agency (EPA) with a consistent source of funding to carry out evaluations of health risks posed by specific chemicals. The new law also establishes a preemption scheme which, while not as broad in scope as preemption provisions in some other laws, gives EPA the ability to preempt certain state laws. This may not, however, include state chemical reporting regimes in place at the time of enactment, although the fate of further updates or changes to those laws will likely be the topic of future litigation. At present, firms must continue to absorb the cost and effort to report the presence of a contaminant or de minimis levels of chemicals in products under applicable state green chemistry laws, at least until EPA determines that certain chemicals or levels are safe. State regulations of chemicals will, therefore, continue to be important to a broad set of industries and companies going forward.

Below, we discuss current and potential state green chemistry regimes that have developed since our last article on this topic, discuss some chemical-specific laws, and assess what might be on the horizon now that TSCA reform has been enacted. There are many nuances in these laws, with certain exceptions and exemptions not as extensive as they initially seem. Adding to this complexity is the fact that guidance documents do not always align with the statutory language. We provide a high-level summary of the laws mentioned below, so it is still important to carefully review the detailed requirements of these laws if you are subject to them.

“Green chemistry” laws are generally those that attempt to address the use of numerous chemicals in products – sometimes limited to children’s products –typically by establishing a list of chemicals of concern or high concern and requiring reporting. This approach adopts a “right to know” principle. In practice, this may encourage manufacturers to eliminate chemicals to avoid the burdens and (potentially) negative reputation hit associated with reporting. State green chemistry regimes vary in many crucial respects, although many include common elements – most importantly, reporting. 

For example, California’s green chemistry law could reach all consumer products and includes a mandatory alternatives assessment. However, the obligations apply only to specifically listed chemicals in specifically listed products, so the impact has been much more limited than was anticipated when the law was adopted. Washington enacted a green chemistry law that applies only to children’s products, but all children’s products are subject to reporting if any listed chemical is present. Unlike California, the Washington law encourages but does not require, an alternative assessment. Maine’s green chemistry law is something of a hybrid of California and Washington. It applies to children’s products and requires an alternatives assessment for a subset of chemicals once the state’s administering agency imposes such a requirement. The green chemistry law in Oregon also covers children’s products and requires an alternatives assessment, but goes further. It purports to require the removal of listed chemicals in certain products by submission of a third biennial report. Vermont is considering legislation that would expand reporting obligations to all consumer products, and require the removal of listed chemicals in children’s products after the third biennial report.

This short overview simply identifies some key differences among the major state green chemistry laws. We address each of the existing state green chemistry regimes in alphabetical order below, including proposed updates to those regimes as of the date of this summary. Current legislation to impose new green chemistry regimes follows this list.

California. In 2008, California passed the Green Chemistry Law,[3] the first state law of its kind designed to regulate chemicals in all consumer products. The law requires the state’s Department of Toxic Substances Control (DTSC) to adopt regulations for identifying and prioritizing chemicals of concern found in consumer products. Despite being the first state to enact green chemistry legislation, California has taken a deliberative approach to implementing regulations, so the law affects a very small number of products at present.

The Safer Consumer Products Regulations (SCP), adopted October 1, 2013, created a four-step process for evaluating chemicals of concern and identifying safer consumer product alternatives.[4] After identifying candidate chemicals (step one), DTSC identifies priority products containing the chemicals (step two). Then, manufacturers must perform an AA, comparing the priority product with potential alternatives (step three). (A draft guide on AAs was released in 2016.)[5] Finally, DTSC may issue a regulatory response, such as a prohibition or use restriction (step four), which does not apply if manufacturers file conforming removal/replacement notifications.

In April 2015, DTSC released its 2015–2017 Priority Products Work Plan, identifying a broad set of considerations for identifying categories for priority products and chemicals of concern.[6] Only limited categories of products have been identified so far: paint and varnish strippers and surface cleaners containing methylene chloride; spray polyurethane foam systems containing unreacted diisocyantes; children’s foam padded sleeping products containing tris(1,3-dichloro-2-propyl)phosphate (TDCPP).[7] Although these initial products are not on a final priority products list, DTSC is already considering additions, including uses of nonylphenol ethoxylates and triclosan in a variety of goods;[8] chemicals in nail products;[9] and perfluoroalkyl and polyfluoroalkyl substances (PFASs) in carpets, rugs, indoor upholstered furniture, and their related care and treatment products.[10]

Connecticut. Green chemistry legislation was adopted in Connecticut in 2008. The principal objective of Connecticut’s State Child Protection Act was to set limits on the levels of lead in children’s products, arguably taking it outside the ambit of a true green chemistry law. However, the law also requires the state to identify a list of toxic substances and recommend maximum permitted levels of such substances as well as safer alternatives.[11] Participation in an interstate chemicals clearinghouse is allowed.[12] 

Lead restrictions in both paint and surface coatings and substrate in children’s products were preempted by the Consumer Product Safety Improvement Act of 2008 (CPSIA), but the state has used other laws, outside of its green chemistry regime, to regulate chemicals. Among these have been restrictions on bisphenol A (BPA), restricting the use of the chemical in reusable food and beverage containers, infant formula containers, baby food containers,[13] and (later) in thermal receipt paper.[14] Another law prohibited the manufacture, sale, or distribution of children’s jewelry containing cadmium at more than 0.0075% by weight.[15]

Maine. Maine instituted its green chemistry regime in 2008 to reduce the use of chemicals of high concern in children’s products.[16] The state’s Department of Environmental Protection (MDEP) administers the law as the Safer Chemicals in Children’s Products Program (SCCP). MDEP uses reporting and a three-tiered system of chemical categorization to encourage the use of safer chemical alternatives and to increase awareness of potential childhood chemical exposures. Participating in an interstate chemicals clearinghouse is permissible.

The first tier of the SCCP’s three-tiered system creates a list of “chemicals of concern,” which are identified as carcinogens, reproductive toxins, or endocrine disruptors,[17] and includes approximately 1,400 chemicals.[18] The second tier uses the chemicals of concern list to identify a much smaller subset of “chemicals of high concern,” and currently consists of 36 chemicals.[19] The final tier identifies “priority chemicals” from the list of chemicals of high concern, and inclusion here triggers greater requirements for industry participants, including reporting[20] and potentially a required AA (if specifically directed by the state).[21] The AA requirement is notable as AAs are optional in most other states. The current list of priority chemicals includes BPA,[22] nonylphenol, nonylphenol ethoxylates,[23] cadmium, mercury, arsenic,[24] formaldehyde, di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), and diethyl phthalate (DEP).[25]

Michigan. The Michigan Green Chemistry Program was created in 2006 by Executive Directive No. 2006-6. Although the program encourages the elimination of toxic chemicals from consumer products, there is no enforcement mechanism.

Minnesota. The Toxic Free Kids Act of 2009 requires the Minnesota Department of Health (MDH) to create two lists of chemicals, one of “chemicals of high concern” and another of “priority chemicals.”[26] The high concern list identifies chemicals that may harm human health or the environment. Over 1,700 chemicals were included in the first list, and chemicals have been added and removed in subsequent updates in 2013 and 2016. Although the law provides for the identification of and communication about the potential for “hazardous chemical exposures which could be harmful to human health,” and potentially selects chemicals for the “development of health[-]based guidance,”[27] the law does not impose a reporting requirement MDH may nonetheless participate in the Interstate Chemicals Clearinghouse (IC2). Earlier this year, the state legislature began considering a bill to require reporting, updated biennially, with universal product codes (UPCs) being required in the second submission if the listed chemical is not removed from the product.[28] The bill would impose a $1,000 fee per chemical initially reported.[29]

Oregon. In 2015, Oregon passed its own Toxic Free Kids Act to establish and maintain a list of chemicals of high concern in children’s products.[30] The law requires manufacturers to report products to the state that contain chemicals identified as chemicals of high concern at greater than de minimis levels. The first reporting deadline is January 1, 2018, and then every other year after that.

Crucially, chemicals will need to be removed from certain products by six years after reporting begins, including listed chemicals in children’s products that are children’s cosmetics, mouthable, or made for or marketed to children under three. Manufacturers can seek waivers through the submission of an AA and quantitative exposure assessment that demonstrates the presence of the chemical in the children’s product is not reasonably anticipated to result in exposure, and removal of the chemical is not financially or technically feasible. Additionally, listed chemicals that are regulated by CPSIA, and present at or below CPSIA-set levels, need not be removed.[31]

The Oregon Health Authority (OHA) is writing rules in three phases that will govern reporting and other requirements. In the first phase (already completed), OHA listed chemicals of high concern (the same as Washington state’s 66). OHA has also completed the second phase by publishing a final rule setting out manufacturer reporting requirements and non-compliance penalties. In 2019, OHA plans to complete the third phase by issuing final rules on removing CHCCs from children’s products covered under state law. The first possible deadline for removing CHCCs or applying for a waiver is January 1, 2022. The state’s legislature is also considering a bill that would redefine the “de minimis level” to “a concentration of 100 parts per million,” which would be effective January 1, 2018.[32] Given the projected timeline of program requirements, it is possible that some Oregon requirements will be preempted by the implementation of TSCA reform initiatives.

Vermont. When initially conceived, the Vermont law was modeled after Washington’s.[33] In its current form, Vermont’s legislation remains like Washington’s green chemistry regime in most regards but is much more onerous. Like Vermont, the state adopted a list of 66 CHCCs. Under the state’s Chemical Disclosure Program (CDP), manufacturers and importers of children’s products sold in the state are required to file a notice to the state’s Department of Health (VDH) if their products contain a CHCC.[34] Unlike Washington and other states, however, reports must identify chemicals in products by brand name and product model, at the level of stock-keeping units (SKUs)[35] (SKU reporting is not required for trade secrets[36]). 

Each manufacturer must pay a fee of $200 per notice; notices are based on individual chemicals (with each product containing the chemical listed). Thus, based on a list of 66 chemicals, the maximum fee owed by a single company is $13,200. If a chemical is a trade secret, the manufacturer must still report the chemical’s function, generic class or category, and concentration.[37] Manufacturers are exempt from reporting where a manufacturing control program (MCP) (a chemical control program that includes industry best practices to limit chemicals in children’s products) is in place.[38] Failure to report or comply with any other provision of the rule can subject a company to civil enforcement by the state’s attorney general.[39]

Initial reports were due January 1, 2017^,[40] and the next set of full reports are due by August 31, 2018, with further disclosures from manufacturers due biennially. While the Vermont law does not currently ban products containing CHCCs, a working group under the rule will review disclosure data and recommend next steps.[41]

A new bill under discussion in the legislature would amend requirements under the State Toxics Use Reduction and Hazardous Waste Program.[42] As introduced, the bill would have significantly expanded Vermont’s CDP by extending reporting requirements to all consumer products – not just children’s products.[43] Further, following Oregon’s example, the original bill would have required removal, by the third required biennial report, of listed chemicals from children’s products that are mouthable; children’s cosmetics; or made for, marketed for use by, or marketed to children under three.[44] However, the bill as passed by the Senate, is less burdensome, as it establishes an Interagency Committee on Chemical Management to evaluate chemicals in the state’s inventory.[45] The amended bill is now under review by the House. 

Washington. The state’s Children’s Safe Products Act (CSPA)[46] required the state Department of Ecology (Ecology) to develop rules[47] to administer a green chemistry reporting program. While applicable only to children’s products, the Washington program has served as a model for other states. The legislation requires affected manufacturers to report the presence of listed chemicals in children’s products, with “children” defined as those under 12. While AAs are permitted, they are not mandatory, and the CSPA does not require manufacturers to eliminate chemicals or make product changes. (Ecology released a guide on AAs in 2015.)[48] Ecology developed a list of chemicals of high concern to children (CHCC) subject to reporting requirements.[49] The presence of a CHCC in a covered children’s product must be reported to the state unless it is exempt.

Under the CSPA Reporting Rule, companies are required to notify the state about the presence of CHCCs found in their children’s products in two circumstances: (1) if the chemicals are intentionally added and are present above the practical quantification threshold (PQL), or (2) if the chemicals are present as contaminants at any concentration above 100 ppm.[50] Additionally, Ecology defined inaccessible product components (those that during reasonably foreseeable use and abuse would not come into direct contact with the child’s skin or mouth) as exempt from reporting requirements absent case-by-case evaluation and specific requirements by rule.[51] A manufacturer need not file a notice for any CHCC that occurs only as a contaminant as long as the manufacturer has in place an MCP and has exercised due diligence to minimize the presence of the contaminant.[52] (The state’s interpretation of a qualifying MCP, however, appears to be quite narrow.) Ecology also conducts tests on individual items and may initiate proceedings against companies that, in the state’s view, fail to report.

Ecology continues to revise its list of chemicals,[53] including in response to legislation,[54] and is planning relatively minor modifications to its rule, likely to be adopted in fall 2017.[55] The Washington legislature is considering additional amendments in the form of a bill to require manufacturers of children’s electronics (which are currently excluded from the definition of children’s products) to report the presence of CHCCs, which would take effect in 2018.[56]

Several additional states are considering bills to adopt green chemistry frameworks.

Alaska. The Alaska House is considering a bill that appears aimed at eventually establishing a green chemistry program that would list chemicals of high concern, permit participating in IC2, but not require reporting.[57] The bill would also prohibit the sale of consumer products containing the flame retardants TDCPP, TCEP, and TCPP.

New York. The New York Senate is considering two bills aimed at establishing different versions of green chemistry programs, including sales prohibitions. Under one, introduced in the prior legislative session, manufacturers would have to report on the presence of priority chemicals, including those designated on a predetermined list or added to the priority list from a longer list of chemicals of high concern. The sale of most children’s products containing any of the original lists of priority chemicals would not be permitted starting in 2020, and selling children’s products containing newly designated priority chemicals would be impermissible three years after designation. The sales prohibitions are not tied to any specific content or contaminant level.[58] A second bill, introduced in four prior sessions, would establish a similar reporting regime and sales prohibition, but start the prohibition in 2022.[59]

Massachusetts. The Massachusetts legislature is considering a bill that would direct the creation of a list of “toxic chemicals,” including nano-objects, used above de minimis levels in children’s products or formulated chemicals. Reporting would be required annually.[60] A separate bill would identify priority chemicals, require reports to be filed by manufacturers and distributors, and require a state council to determine whether feasible alternatives exist for those chemicals. For chemicals that the council identifies feasible alternatives for, a chemical action plan (including a timeline for substitution) would be required.[61] A similar bill was filed in the prior legislative session.

The most significant development in toxic chemicals regulation is the much-anticipated adoption of comprehensive legislation to overhaul TSCA. TSCA provides the EPA with the authority to review, evaluate, test, and regulate the use of chemicals at the federal level. The original law, enacted in 1976, was viewed as outmoded, and states began to regulate chemicals in lieu of the EPA. 

LCSA was passed to replace the current patchwork of state laws with a single national standard. The new safety standards include conditions of use and susceptible populations.[62] EPA can now regulate the use of chemical substances in consumer products, and ingredients will need to be reported.[63] LCSA also includes preemption provisions that could make it more difficult for states to regulate chemicals that are under review by EPA. 

Existing regulations that do not conflict with federal law would stay intact, but future restrictions will likely be affected since LCSA creates a preemption pause to prevent states from evaluating chemicals at the same time as EPA.[64] Two forms of preemption restrict state actions: pause preemption and final action preemption. Pause preemption begins after EPA initiates a review of a high-priority chemical. Once EPA identifies a chemical for prioritization, it must wait at least one year before publishing a scope of risk evaluation. States restrictions are preempted once the scope is published, unless a waiver is obtained, but the pause preemption ends once the final risk evaluation is published or EPA misses its deadline for publishing it. 

Final actions by EPA – both in finding that a chemical “does not present an unreasonable risk” or in finding risk and imposing restrictions – preempt past state actions (unless grandfathered) and future state actions. EPA’s findings and restrictions (if applicable) preempt only state actions within the scope of EPA’s action, however, EPA preemption does not apply to information-forcing requirements like monitoring, reporting, or disclosure. This may leave aspects of state green chemistry regimes intact, although restrictions may be subject to challenge. Indeed, the LCSA preemption provisions are likely to lead to litigation as states and the federal government try to sort out the legal landscape. In addition, state substantive restrictions in conflict with EPA or other agency safety determinations could give rise to challenges under the U.S. Constitution’s Commerce Clause.

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Although the pace of state green chemistry lawmaking has slowed since the 2008–2010 time period (when many of the green chemistry regimes were adopted), states continue to pursue or expand regimes with the intent of restricting “chemicals” in consumer products. Unfortunately, state chemical control regimes are likely to increase cost and foster confusion about chemical safety, which is one reason that Congress agreed to modernize TSCA by adopting LCSA. EPA has much work to do to establish policies, designate high- and low-priority chemicals, and adopt substantive limits, and the hope is that LCSA will foster transparency with a focus on science. Ultimately, courts will likely be called upon to resolve the extent to which state actions conflict with EPA actions, or with other requirements, such as chemical limits under the CPSIA.

It remains important for consumer product companies and their chemical suppliers to keep up to date on new developments affecting chemicals across federal and state governments, and market agendas. There will be no shortage of challenges in the foreseeable future.