December 11, 2013

Maine Proposes To Require Reporting of Arsenic, Cadmium, Formaldehyde, and Mercury in Children's Products

Seller Beware: Consumer Protection Insights for Industry,

UPDATE 2 (1/16/2014): Off again, on again. After citing a procedural error and withdrawing its proposal to require reporting of arsenic, cadmium, formaldehyde, and mercury in children's products in mid-December, Maine's Department of Environmental Protection (DEP) revived its rulemaking notices on Christmas eve. A hearing is now scheduled for January 14, 2014, and the comment deadline is now January 31, 2014.

UPDATE (12/16/2013): Maine says not so fast. On Wednesday, December 11, 2013, we reported that Maine's Department of Environmental Protection (DEP) had proposed to require reporting of arsenic, cadmium, formaldehyde, and mercury in children's products. On Friday, December 13, DEP withdrew its rulemaking notice, citing a "procedural error." We will provide a further update if and when the rulemaking is revived.


Companies that make or distribute children's products containing arsenic, cadmium, formaldehyde, or mercury should take note: The Maine Department of Environmental Protection (DEP) is proposing to require companies to report the presence of those four chemicals in concentrations above de minimis levels. Assuming the proposed rules become final, arsenic, cadmium, formaldehyde and mercury would join two other chemicals--bisphenol-a and the chemical class nonylphenol and nonylphenol ethoxylates--as so-called "Priority Chemicals" under Maine's Toxic Chemicals in Children's Products law.

What are the de minimis levels?

If a Priority Chemical is intentionally added to the product, the proposed reporting rules would apply only if the chemical is present at concentrations above the "practical quantification limit" (or PQL), meaning the concentration that can be reliably measured by a laboratory under routine operating conditions. The PQL can vary from chemical to chemical, and product to product. Although the proposed rules do not explicitly say so, the law under which they were issued also requires reporting of a Priority Chemical that is a contaminant (i.e., not intentionally added) at levels above 100 parts per million.

What's covered?

The rules would apply to manufacturers, importers, and distributors of the following children's products intended for use by a child under 12 years of age: bedding, childcare articles, cosmetics, craft supplies, footwear, games, jewelry and embellishments, safety seats, occasion supplies (e.g., costumes and party favors), personal accessories, personal care products, school supplies, and toys.

What's next?

The Maine DEP will hold a hearing on the proposed rules on December 17, 2013, and comments are due by January 10, 2014. If the proposed rules go into effect, reports from manufacturers will be due 180 days following the effective date. Maine would then be the second state to require public reporting for these substances. The four proposed rules are available for download here.

© Arnold & Porter Kaye Scholer LLP 2013 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.

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