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“Doesn’t the CPSIA already have
a 1,000 PPM limit for phtha-
lates?” Yes, but the CPSIA limit
applies only to children’s prod-
ucts 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 pre-
emption provisions. First, any
state laws regulating chemical
content that were in effect on
August 1, 2015, are grandfa-
thered 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 oppor-
tunity 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 determina-
tion 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 vari-
ety 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 par-
tial listing of chemicals and
heavy metals that appear fre-
quently on “chemicals of con-
cern” lists. This list is by no
means comprehensive. It is note-
worthy 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 expo-
sure to that chemical or metal
from use of the product.
Unfortunately, chemical compo-
sition requirements often fail to
properly consider the most basic
principle of toxicology: dose
matters. Science doesn’t necessar-
ily 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 con-
sumers to decide not to buy
products with unappealing
chemical content. If public opin-
ion has moved from the thinking
that “baby products need to be
BPA free” to “all plastic contain-
ers 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 govern-
ment action or by retail regula-
tion, you will need to reduce or
eliminate these chemicals and
metals. Will you be ahead of or
behind the curve?
PRODUCT
RESPONSIBILITY
AUGUST 2016 •
PPB
• 71
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@callet-
law.com.
Examples Of Chemicals
And Chemical Compounds
Use
Phthalates
Plastic softener
Bisphenol A (BPA)
Used in polycarbonate plastic
Formaldehyde
Wrinkle resistance in clothing
Nonylphenol and Nonylphenol Ethoxylates (NP/NPEs)
Surfactant
Aromatic amines and azo dyes
Colorant, dye, pigment
Perfluorochemicals (PFOA and PFOS)
Makes products more resistant to stains,
grease and water
Brominated and chlorinated flame retardants
Flame retardant used on many products
Volatile organic compounds (e.g. toluene)
Solvent
Examples of Heavy Metals
Lead
Cadmium
Arsenic
Cobalt
Mercury