Consumer Protection Alert

Vermont Senate Approves Pricey Green Chem Bill, Now in House’s Hands

The Vermont Senate has approved a bill, S. 239, that would allow the state to require extensive, expensive chemical reporting and impose high fees on nearly everyone doing business in the state. All consumer products – not just children’s products – except electronics, motor vehicles, aircraft, and vessels, would be subject to the law. Other exclusions apply to products primarily purchased for industrial use; foods, beverages and food additives; drugs; pesticides; tobacco products; and ammunition. The bill also contains an express exemption for crystalline silica “in any form.” The bill is now under consideration by the state House of Representatives, which will consider the bill in key hearings this week.

Key Elements

Here are some of the key elements of the bill.

• The bill would require state officials to publish a list of chemicals of high concern to human health or the environment by July 1, 2016, and to revise the list by July 1, 2018, and every two years thereafter.
• Products that contain listed chemicals of high concern must report to the state Department of Health within one year of the chemical’s listing if the product was intentionally added in amounts above that deemed safe, or if the chemical is present as a contaminant in amounts greater than 100 parts per million.
• Filing a report for the first time would require payment of a fee of up to $2,000 per substance. Fees are deposited into a Chemicals of High Concern Fund. As new products are introduced and new chemicals added to the Chemicals of High Concern list, the legislative language does not clearly indicate the full potential financial consequences to affected businesses. States like Washington require reporting by product category and product component. For example, product categories are defined in Washington guidance to mean the “brick” level of the GS1 Global Product Classifiation (GPC) standard.
• Vermont may enter into reciprocal data-sharing arrangements with other states and may waive reporting requirements if a manufacturer submitted the information to another state with which a reciprocal data-sharing agreement is in place.
• Reporting elements (chemical name and CAS number, product description, function of the chemical, amount, identity of the manufacturer with a contact person, other information deemed relevant to the appropriate use of the product by the manufacturer, and other information required by the Commissioner) are similar to other state green chemistry reporting laws.
• A mandatory alternatives assessment is not part of the required report in Vermont, but is relevant to subsequent rules regarding bans, use restrictions or labels of products containing the chemicals.
• The Commissioner of Health must submit a report to the legislature on implementation, administration and financing of the requirements on or before January 15, 2015, and biennially thereafter.

Role of the Working Group

A “Chemicals of High Concern Working Group” would be established to consult with the Commissioner of Health, who would also be permitted to consider designations made by other states, the federal government, other countries, and other governmental agencies in developing the chemicals of high concern list. Ultimately, if the Working Group makes a recommendation, the state may adopt a rule to regulate the sale or distribution of a consumer product containing a priority chemical when, based on the weight of available, scientific studies, the toxicity of the priority chemical in the consumer product and its potential exposure pathways in the product pose a public health risk. Such a rule could be in the form of a ban or labeling requirements; rules governing that process must be adopted by July 1, 2017.

The reference to exposure pathways in the section on further regulation suggests that common sense, standard approaches to assessing potential risk will apply. If so, and if the Vermont legislation is adopted, the result will be a duplicative review of safety covered in laws administered by federal agencies like the Consumer Product Safety Commission (CPSC), and many consumer product safety standards that address chemical exposure risks, like the mandatory toy safety standard and voluntary safety standards for jewelry. These standards already establish health-protective limits on substances identified as likely to be of most significant concern. However, since the premise of this and other state green chemistry laws seems to be the unwarranted assumption that the mere presence of a priority chemical in a consumer product presents an unacceptable risk, the business community is not convinced that science-based approaches to evaluating potential health hazards will prevail.

Status

Advocacy organizations such as the Vermont Public Interest Research Group (VPIRG) testified in favor of the measure in an April 3, 2014 hearing. Industry groups have spoken out against it, arguing that it assumes that consumers are inadequately protected in today’s marketplace. VPIRG has elsewhere raised concerns about chemicals such as formaldehyde, bisphenol A (BPA), parabens, phthalates, heavy metals, and industrial solvents. Proponents such as firefighters hope that flame retardants might be considered for listing; tris phosphate (TDCPP) used in children’s foam padded sleeping products was one of the designated chemicals of concern in products of concern under California’s Department of Toxic Substances Control’s (DTSC) initial proposed priority products list pursuant to the California green chemistry law.

The state Senate pointed to the lack of substantial reform of the 1976 Toxic Substances Control Act (TSCA) as one reason it approved this legislation. A proposal to update the Environmental Protection Agency’s regulation of chemicals is under discussion in the U.S. Senate, where one bill (S. 1009) contains provisions that would restrict the states’ authority to regulate chemicals. Federal reform efforts appear to be stalled, however.

This proposal, like the green chemistry law in Washington state covering children’s products, does not explicitly require testing. However, given developments in other states the cost impact could be felt in added, expensive chemical screening tests. Because the Vermont proposal applies to all products – not just children’s products as Washington’s law requires – its burden on businesses in the state will likely be substantial.

Consumer product manufacturers, retailers, and importers in Vermont that have not yet done so may wish to reach out to state officials to share their concerns about the proposal. If enacted, the law will likely result in increased costs to businesses and consumers, and could even result in cutting product lines or activity in the state.

If you have questions about this or other consumer product safety questions, please contact Sheila A. Millar at (202) 434-4143 or via e-mail at millar@khlaw.com, or JC Walker at (202) 434-4181 or via e-mail at walker@khlaw.com.