PPB August 2016

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 chemi-

cal—has in practice morphed

into a chemical content statute.

How? Prop 65 settlements fre-

quently require that future sales

of a product need not have a

Prop 65 warning if the level of

the Prop 65 chemical is signifi-

cantly 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 prod-

ucts containing lead and phtha-

lates 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 reform-

ing 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 reg-

ulations 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 implement-

ed, these California regulations

will create a “sea-change”

approach to the regulation of

chemicals in

all

consumer prod-

ucts. DTSC has identified a long

list of potentially hazardous

chemicals that ultimately may

not be used in consumer prod-

ucts 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 ini-

tially on specified classes of

products, such as beauty, personal

care and hygiene products, clean-

ing products and clothing, and

plans to issue regulations pre-

cluding the use of a long list of

chemicals in those products.

Also in the past several years,

five states have passed laws seek-

ing to limit the presence of cer-

tain chemicals in children’s prod-

ucts 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 pub-

licly available reports identifying

which products contain any of 66

Chemicals of High Concern that

are intentionally added or pres-

ent 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 sell-

ers of children’s products in the

state that it intends to enforce

additional provisions of its

CPSA, such as the 40 PPM cad-

mium limit and the 1,000 PPM

phthalate limit. You might say,

70 •

PPB

• AUGUST 2016

THINK

PRODUCT

RESPONSIBILITY

Hear CPSC Commissioner

Mohorovic At PPAI’s 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 pri-

orities and their impact on the promo-

tional 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