Page 36 - 2018 October Bar Journal

BarJournal ENVIRONMENTAL LAW

JULY/AUGUST 2015
fEaTUrE Examples of Chemical regulations

applicable to U.S. Companies

BY JOHN A. HEER

ome of you might have noticed an The upcoming deadline (which will be a past • •Maryland – a) bans the sale of mattresses,
uptick lately in the area of chemical deadline by the time you read this) requires residential upholstered furniture and
regulations applicable to products a substantive change in the information electronic equipment containing decaBDE,
in the United States. By chemical required to be included in the warnings. By b) bans the sale of all products containing
Sregulations, I mean state and federal Aug. 30, 2018, businesses whose products flame retardants pentaBDE and octaBDE,
legislation as well as international regulations contain one or more of the 900-plus listed and c) bans TDCPP and TCEP from
which apply to American companies doing chemicals in certain amounts must identify children’s products sold in the state.
business worldwide. For example, California’s the chemical or provide specific information • •Michigan – bans products containing more
infamous Proposition 65 is particularly hot about how a person may be exposed or ways than 0.1 percent of flame retardant pentaDBE.
right now because of an upcoming deadline to reduce or eliminate exposure to it. The new • •Minnesota – bans products containing
for new rules for labeling and warning about amendments change the safe harbor warnings flame retardants pentaDBE or octaBDE,
chemicals in products in California. Clients have which are deemed to comply with the law in and bans other specific flame retardants
been reaching out to me about these new Prop several important ways. For example, the new from children’s products, mattresses and
65 rules. Speaking of “reaching” out, a number warnings for consumer products will say the residential upholstered furniture.
of clients have been requesting assistance with product “can expose you to” a Prop 65 chemical • •New York – a) prohibits the use of pentaDBE
REACH, one of the European Union’s regulations rather than saying the product “contains” the and octoBDE in any consumer product,
of chemicals. Because these are hot topics among chemical. The warnings will also include: b) bans the sale of children’s products
environmental lawyers, I will touch on a few here • •The name of at least one listed chemical that containing TCEP, and c) bans TDCPP in
to bring awareness about what rules might be out prompted the warning. children’s products marketed for children
there and possibly applicable to what you and • •The internet address for California’s new Prop age three and younger.
your company might do. 65 warnings website, www.P65Warnings. • •Oregon – bans products containing
First, let me describe California’s “Prop ca.gov. pentaDBE, octaBDE or decaBDE.
65.” Proposition 65, officially known as the • •A triangular yellow warning symbol on most • •Rhode Island – restricts the manufacturing
Safe Drinking Water and Toxic Enforcement warnings. and distribution of products containing
Act of 1986, was enacted as a California ballot Prop 65 is only one example of a state pentaBDE or octaBDE.
initiative in November, 1986. The proposition regulation on chemicals which could have • •Vermont – a) bans flame retardants
tries to protect the state’s drinking water far-reaching impact beyond the borders of octaBDE and pentaBDE from all products,
sources from being contaminated with California. Some states have targeted specific b) bans the sale of mattresses and furniture
chemicals known to cause cancer, birth groups of chemicals. By 2017, 11 states had containing decaBDE, and c) bans TCEP
defects or other reproductive harm, and enacted legislation banning or restricting certain and TDCPP from children’s products and
requires businesses to inform Californians flame retardants in products sold within their furniture.
about exposures to such chemicals. Prop borders: These are just examples of how variable
65 requires warnings about significant • •California – bans products containing more the requirements are from state to state in the
exposures to chemicals which can be in than 0.1 percent of the flame retardants United States.
the products Californians purchase, have pentaDBE or octaBDE by mass and requires The principal “federal” regulation of
in their homes or workplaces, or that are that products sold within the state warn chemicals is the Toxic Substances Control Act,
released into the environment. By requiring whether they contain any added flame most recently amended in 2016. The Toxic
this information to be provided, Prop 65 retardants. Substances Control Act (TSCA) provides the
supposedly enables Californians to make • •Hawaii – bans products containing more Environmental Protection Agency (EPA) with
informed decisions about their exposures to than 0.1 percent = of the flame retardants authority to require reporting, record-keeping
these chemicals. Prop 65 requires California pentaDBE or octaBDE. and testing requirements, and restrictions
to publish a list of chemicals known to cause • •Illinois – bans products containing more than relating to chemical substances and/or
cancer, birth defects or other reproductive 0.1 percent of the flame retardants pentaDBE mixtures. Certain substances are generally
harm. This list, which must be updated or octaBDE and restricts the use of decaBDE. excluded from TSCA, such as food, drugs,
at least once a year, has grown to include • •Maine – bans products containing added cosmetics and pesticides. TSCA addresses the
approximately 900 chemicals. brominated flame retardants. production, importation, use, and disposal of
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