The chemical wars are in full swing. And for consumer products and chemicals manufacturers, victory on the regulatory front is by no means a foregone conclusion.
Progressive legislators in states such as California, Massachusetts and Washington have already succeeded in passing laws aimed at “supplementing” —i.e. going further than— existing federal standards dealing with the disclosure and reporting of toxic chemicals in consumer products. Back in 2008, for example, Washington passed the stringent Children’s Safe Products Act, which penalizes first-time violators with fines of $5,000 but stipulates $10,000 fines for all subsequent violations. The same year, California passed its Green Chemistry Initiative (also called the Safer Consumer Products law), which seeks to reduce or eliminate the use of toxic chemicals in consumer products in the state (but also to affect operations nationally thanks to the sheer size of the California market). The state is now implementing these regulations, which took effect last fall. “The law represents a sea change in how products are made safer,” writes Sustainable Business News. “Instead of trying to determine how toxic specific chemicals are, it asks why they are necessary at all. Instead of banning specific chemicals from particular products, such as bisphenol A in baby bottles, [regulators] are looking at classes of products.”
In April, California regulators announced three “priority products” they will be scrutinizing first: spray polyurethane foam systems containing unreacted diisocyanates; children’s foam-padded sleeping products containing Tris (1,3-dichloro-2-propyl) phosphate; and paint and varnish strippers and surface cleaners with methylene chloride. “More product-chemical combinations will be added in the future,” the state noted. Sustainable Business News summed up the net effect: “If manufacturers wish to sell those products in California, they must perform a detailed analysis that either justifies their current formulation or results in a safer alternative. The impact will be widespread—across global supply chains of manufacturers. The lifecycle evaluation will be based not only on risk during product use, but also during manufacture and disposal.”
Other states are piling on, too. In March, the Vermont Senate passed legislation forcing consumer products manufacturers to disclose any “chemicals of high concern” in their products and authorizing the state to ban such products outright. The bill is expected to become law. Meanwhile, at least 30 states are now considering new laws cracking down on purported toxins in cosmetics, furniture, thermostats, synthetic turf, beverage containers and much more, according to SaferStates.com.
At the federal level, lawmakers from both sides of the aisle are going toe-to-toe over reform of the Toxic Substances Control Act of 1976 (TSCA). One proposal, the so-called Chemicals in Commerce Act, would actually strip states of their authority to crack down on chemicals as described above. This sounds like good news for industry, but the measure faces some long odds, having sparked strong opposition from environmentalists as well as the states (13 state attorneys general recently signed a letter objecting to the idea).
What is actually happening at the federal level? Progressives are fighting to strengthen TSCA as part of their longstanding efforts to bring the United States in line with Europe’s draconian and onerous approach to regulating chemicals. Conservatives are seeking to use federal law as a counterweight to what they see as the radical agenda of the states; they would like to preserve or weaken TSCA if possible. A stalemate resulting in little or no change, polls say, is likely. For consumer product and chemical manufacturers, then, the federal government is unlikely to act as a “white knight.” As more states forge ahead with expensive and time-consuming regulations on the use of chemicals in consumer products, industry will bear the costs and risks.
Bear in mind, the risks extend well beyond government fines: The same litigation trolls who continually scrutinize companies’ green marketing claims will no doubt aggressively sue those companies found to violate chemical disclosure requirements. If a test shows the presence of formaldehyde in a bottle of nail polish labeled “formaldehyde-free,” the $5,000 fine could be just the start of the company’s trouble. The message for industry is clear enough: Better redouble your efforts to defend your interests—at all levels of government—before it is too late.
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