State of Washington’s Final Regulatory Determinations Report for Safer Products: A Different Approach to Chemical Management

Following up on its November 2021 Draft Regulatory Determinations, the Washington State Department of Ecology (Department or DOE) has just released its “Final Regulatory Determinations Report to the Legislature.” The Final Report was issued pursuant to the state’s “Safer Products” program, which addresses select chemical-product combinations such as Organohalogen Flame Retardants (OFRs) and Per- and polyfluoroalkyl substances (PFAS) in certain consumer use products. However, the list of chemicals and products being targeted by DOE does not stop there. Although the Final Report does not constitute a formal regulatory action, it identifies the contours and objectives of regulations that will be proposed later this year by the Department, and which must be finalized by June 2023. The Final Report is likely to generate consumer concern about purchasing or using implicated products, even before any regulations are ultimately proposed. What is equally significant is the approach to chemical management being utilized by the state of Washington.

Background

The Washington Legislature enacted the Pollution Prevention for Healthy People and Puget Sound Act (Act) in 2019. The Act directs DOE to implement a program to reduce priority chemicals in consumer products. DOE’s regulatory program to implement the 2019 law is called “Safer Products for Washington.” The program consists of a four-phase process, starting with identification of priority chemicals to be studied and considered for regulation and concluding with rulemaking, that occurs in a five-year cycle. As part of the first cycle in the program, DOE has been evaluating whether to restrict the use of a number of substances, including: OFRs in electronic and electrical equipment and certain recreational foam products; PFAS in carpet, textile and leather furnishings, and aftermarket stain and water resistance treatments (Washington State defines PFAS as “a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom”); and Ortho-phthalates in personal care and beauty products and vinyl flooring. Additional chemical and product combinations are addressed in the Report.

The Department published its Draft Regulatory Determinations Report to the Legislature on November 17, 2021. In the report, DOE proposed restricting the use of the aforementioned chemicals in all the identified product categories. The final version of the report was issued on June 6 and includes summaries of planned restrictions on certain products as well as reporting requirements for others. The program now moves to the fourth phase, under which the Department will adopt any restrictions or reporting requirements through a rulemaking process to be concluded by June 1, 2023.

When the 2023 legislative session adjourns, unless the Legislature takes an action to change the regulatory determinations in the final report, the regulatory determinations will be deemed finalized. The Department will conduct rulemaking to adopt the final determinations. The details of the rulemakings have yet to be defined, but are expected to include more detailed product descriptions, possible exemptions, existing stock allowances (if any), compliance timeframes, possible chemical concentration limits, and other considerations. Stakeholders and the public will have opportunities to contribute to the draft rule development process during 2022 and a chance review and comment on the formal draft in 2023.

The Planned Restrictions

The final determinations are:

For OFRs—The use of OFRs in external plastic device casings for electric and electronic products intended for indoor use will be restricted. The use of OFRs in external plastic device casings for electric and electronic products intended for outdoor use will be subject to a reporting requirement.

For PFAS—The use of PFAS in carpets and rugs will be restricted. The use of PFAS in indoor leather and textile furnishings will be restricted. The use of PFAS in outdoor leather and textile furnishings will be subject to a reporting requirement. The use of PFAS in aftermarket treatments applied to textile and leather consumer products will be restricted.

For Ortho-phthalates—The use of ortho-phthalates in fragrances in personal care and beauty products will be restricted.

The Department also will be taking actions on phenolic compounds in laundry detergents, thermal paper, and beverage containers. DOE declined to act on PCBs in paints and inks, as the Department has taken the position that federal PCBs rules under the Toxic Substances Control Act preempt state action to restrict PCBs.

A New Approach to Chemical Management: Guilty Until Proven Innocent

One critique of the proposal was that DOE utilized a class-based approach to address the substances, despite statements from the Consumer Product Safety Commission staff and the National Academies of Science Engineering and Medicine that a single-class approach is not scientifically appropriate or justified. DOE stated in response that use of a class-based approach avoids assuming chemicals with no or little data are safe, and it helps prevent regrettable substitutions where one chemical is restricted and replaced with a similar and equally or more toxic chemical. In essence, instead on focusing on chemicals with known risk, it’s easier to just restrict an entire class—despite known differences in chemical structure, physicochemical properties or biological activity amongst the class members—to make sure nothing gets missed.

DOE stated that the Department does recognize that chemicals within classes show toxicological diversity. Therefore, they have developed a process for separating a particular chemical from the broader class when evidence demonstrates it is safer than others. In essence, all chemicals within the class are presumed unsafe until evidence to the contrary is presented—an apparent application of what has become known in Europe as the precautionary principle.

This approach is consistent with DOE’s statement regarding “risk.” DOE states that the Department did not perform risk assessments, a process which takes into consideration both a chemical’s hazard profile as well as the exposures (including releases) of the chemical that might occur. This is because DOE views the goal of the safer products program as to “prevent pollution”—not to minimize risk. Therefore, DOE focused on identifying opportunities to reduce any exposure to “toxic” chemicals by compelling product manufacturers through restrictions to move to “safer” alternatives. DOE’s efforts did not include efforts to determine whether an acceptable level of exposure to a substance might exist, and whether substances within products are even released at levels that constitute risks. In fact, DOE consciously declined to examine whether the chemicals in the subject classes actually present a risk when they appear in the selected product categories. By implication, DOE is presuming that all the subject chemicals are unsafe under any circumstances, and therefore exposure to them must be essentially eliminated through regulatory restrictions.

This approach to chemical management is a departure from the risk-based regulatory systems which are applied by US regulatory agencies operating on the federal level. Embracing of this significantly precautionary approach to regulating chemicals and the products that contain them could lead to wide-sweeping regulation and bans of substances, despite the lack of evidence that such substances pose any actual harm under those conditions of use. Consumer product manufacturers are witnessing similar approaches being taken by multiple state legislatures and regulatory agencies as they clamor to establish prohibitions on PFAS in any consumer product. It has become a struggle to keep up with such activity.

Next Steps

There is no formal comment period on the Department’s Final Determinations. DOE is hosting two webinars in June to outline the regulatory actions they plan to incorporate in the rulemakings and to share example regulations from other authorities. The timeline for rule development is: accepting public input through August 2022; developing the proposed rule in Fall 2022; completing economic analyses during Fall 2022; issuing a draft rule for public comment in late 2022; and finalizing the rule by June 1, 2023.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.