Safe Products Sell

Beat The Clock On Chemical Regulation

Let’s talk about chemicals in your company’s products. Like all consumer products, promotional products are subject to two different but interwoven forces. On the one hand, both federal and state laws and regulations limit the quantities of certain chemicals and heavy metals permitted in your products. On the other hand, your company faces an increasingly significant phenomenon that can be called “retail regulation,” meaning that retailers react to what people think, whether this thinking is accurate or not.

You may say, “But promotional products are not normally sold through retailers.” True, but that matters little, because the retail regulation phenomenon will still affect the salability of your products. Consumers increasingly want products that are free of chemicals they consider to be hazardous. Which of these influences—government regulation or consumer demand—will affect your company and its products first? Does it really matter? One way or another, you will need to comply. The point here is that you have an opportunity now to put yourselves ahead of both curves by making product and/or supplier changes that will benefit your company’s bottom line in the long run. You have an opportunity to differentiate your products in the marketplace by abiding by a simple idea: safe products sell. When it comes to sales, if consumers believe that chemical-free products are safer, they are!

Here’s some brief background. You are probably familiar with the Consumer Product Safety Improvement Act (CPSIA) enforced by the Consumer Product Safety Commission. Many companies have redesigned their products to meet the CPSIA’s lead content limits for all children’s products, the limits for eight heavy metals in toys, and the phthalate limits for toys and child care articles. For some promotional products companies the CPSIA has not presented an issue because they do not sell children’s products. But that freedom from chemical-content regulation may last only so long. Chemical content requirements initially set for only children’s products can, and often do, come to impact all products.

For example, California’s Proposition 65, which is solely a warnings statute—products sold in California must warn about the presence of a Prop 65 chemical—has in practice morphed into a chemical content statute. How? Prop 65 settlements frequently require that future sales of a product need not have a Prop 65 warning if the level of the Prop 65 chemical is significantly reduced. Other companies pay attention to and follow the latest settlements to set their own chemical content level for their products, hoping that this will insulate them from a Prop 65 suit.  Over the past several years practically all of the Prop 65 settlements involving products containing lead and phthalates have required reformulation of the products to levels that do not exceed 100 PPM for lead and 1,000 PPM for phthalates, which, not so surprisingly, are the CPSIA’s content limits for those chemicals.

You may not be familiar with another federal law called the Toxic Substances Control Act (TSCA) that has been on the books since the 1970s and is enforced by the Environmental Protection Agency (EPA). For many years chemical-content activists complained that TSCA did not give the EPA sufficient power to regulate the use of potentially hazardous chemicals.

Nevertheless, for more than 40 years TSCA remained unchanged. In the past few years serious discussion about reforming TSCA began. Finally, in June, Congress passed, and the president signed into law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, significantly revising TSCA and strengthening the EPA’s power to regulate. After 40 years of inaction, why was TSCA amended this year? At least one reason for this change is that consumers’ views about the potential hazards presented by chemicals in products changed. This led several progressive states to pass laws and issue regulations limiting the use of numerous chemicals in specified types of products, and several other states appear poised to pass similar laws. Compromise on TSCA finally occurred because business interests felt that an inconsistent patchwork of state chemical-content laws was more problematic than one federal law on the subject. As discussed below, TSCA, as amended, will do only a little to stop states from pursuing their own vision of the appropriate chemical content of consumer products.

California, always a leader in this area, passed its Green Chemistry Initiative, which led to California’s Department of Toxic Substances Control (DTSC) issuing its Safer Consumer Products Regulations in 2013. Once fully implemented, these California regulations will create a “sea-change” approach to the regulation of chemicals in all consumer products. DTSC has identified a long list of potentially hazardous chemicals that ultimately may not be used in consumer products unless the company selling the product can demonstrate that there is no practical alternative to that chemical. DTSC plans to roll out these new requirements over time.

In 2015, DTSC published its Three Year Priority Work Plan, which is a “road map” of how DTSC intends to implement its Safer Consumer Products Regulations. The DTSC Work Plan states that it will focus initially on specified classes of products, such as beauty, personal care and hygiene products, cleaning products and clothing, and plans to issue regulations precluding the use of a long list of chemicals in those products.

Also in the past several years, five states have passed laws seeking to limit the presence of certain chemicals in children’s products sold in those states. The first was the Washington State Children’s Safe Products Act (CSPA). The CSPA requires companies that sell children’s products in the state to file publicly available reports identifying which products contain any of 66 Chemicals of High Concern that are intentionally added or present as contaminants in excess of 100 PPM. Maine, Vermont, Minnesota and Oregon enacted their own versions of the Washington CSPA. Recently, the state of Washington alerted sellers of children’s products in the state that it intends to enforce additional provisions of its CPSA, such as the 40 PPM cadmium limit and the 1,000 ppm phthalate limit. You might say, “Doesn’t the CPSIA already have a 1,000 PPM limit for phthalates?” Yes, but the CPSIA limit applies only to children’s products that are considered toys and child care articles. The state of Washington asserts that it will enforce its phthalate requirement for all children’s products.

So, now let’s return to TSCA, as amended by the Lautenberg Chemical Safety Act. Many manufacturers had hoped that an amended TSCA would preempt states from enforcing their own chemical content laws. Unfortunately, TSCA, as amended, has relatively weak preemption provisions. First, any state laws regulating chemical content that were in effect on August 1, 2015, are grandfathered under the updated TSCA. States will be free to continue to enforce those laws. For example, Prop 65 is unaffected by the updated TSCA. TSCA now has a complex set of procedures that gives the EPA the initial opportunity to determine if a chemical should be regulated. If EPA determines that a chemical should or should not be regulated, the states will not be able to enforce inconsistent laws limiting the use of that chemical. But if the EPA has not made such a determination or if it takes too long in making such a determination, states will be free to act. So TSCA reform is not likely to provide the hoped-for panacea for inconsistent requirements.

What does all of this mean for your company, as an importer, distributor or supplier of a variety of products containing or not containing the affected chemicals and/or metals? The first question you will need to answer is, “Do I know which chemicals and heavy metals are in my products, and in what quantities?” Below is a partial listing of chemicals and heavy metals that appear frequently on “chemicals of concern” lists. This list is by no means comprehensive. It is noteworthy that almost every one of these are on the EPA’s “Work Plan for Chemical Assessments,” meaning they will likely be reviewed and regulated sooner or later under the updated TSCA process.

The safety of the above chemicals and metals depends largely on the consumer’s exposure to that chemical or metal from use of the product. Unfortunately, chemical composition requirements often fail to properly consider the most basic principle of toxicology: dose matters. Science doesn’t necessarily drive what regulators do or what people think.

Ultimately, what people think is key to whether they will buy your products. The same social climate that caused states to regulate chemical content in products is likely to lead consumers to decide not to buy products with unappealing chemical content. If public opinion has moved from the thinking that “baby products need to be BPA free” to “all plastic containers need to be BPA free,” do you really want to be selling products containing BPA?

Find out which and what quantity of chemicals and heavy metals are in your products and specify substitutes. Don’t believe that regulations that are now in force only for children’s products will remain limited to these products. Look over the chart of chemicals and metals and assume that your marketplace will soon want you to remove them. This is just good business.  By government action or by retail regulation, you will need to reduce or eliminate these chemicals and metals. Will you be ahead of or behind the curve?

David P. Callet is the principal at CalletLaw in Washington, D.C., and provides comprehensive client representation on all aspects of consumer product safety compliance. Reach him at dcallet@calletlaw.com.

Hear CPSC Commissioner Mohorovic At PPAI Product Responsibility Summit

Consumer Product Safety Commission (CPSC) Commissioner Joseph P. Mohorovic will speak on September 20 during the 2016 PPAI Product Responsibility Summit held September 18-20, in National Harbor, Maryland. He will discuss the CPSC’s priorities and their impact on the promotional products industry.

The 2016 PPAI Product Responsibility Summit includes two days of education featuring distinguished speakers, industry thought leaders and representatives from product safety labs and product certification groups. Seating is limited and fills up quickly, so secure your spot at www.ppai.org/prs.