Prognosis for 2015: States Will Continue Efforts to Regulate Chemicals

With 2015 upon us, and the failure of the 113th Congress to enact compromise legislation reforming the aging federal Toxic Substances Control Act, it is becoming more likely that as activist state legislators return to new legislative sessions, they will begin to introduce and seek their colleagues' support for bills that would regulate, and even ban, chemical substances labeled as "risky," "of concern," or "high priority." Many state legislatures have enacted such laws in recent years. The statutes range from those which completely prohibit a specified chemical substance and products that contain that chemical, to laws enabling a state agency to identify and list "priority" chemicals for which makers of products containing the listed substances must file certain reports and make disclosures to customers. In our previous advisory¹, we explained the nature and varieties of state chemical-regulatory legislation, and how such legislation has gained popularity. However, the potential consequences of such laws have yet to be determined.

Manufacturers, importers, and retailers face a great challenge trying to keep up with emerging state chemical regulatory requirements. Monitoring 50 states' legislatures and the state bureaucracies can be an overwhelming task. Nevertheless, if the uptick in state legislative activity in chemical control laws continues to be the trend in 2015, the makers and marketers of commercial and consumer use retail products that might contain a listed chemical will find themselves at risk of violating state laws of which they may be unaware.

Trends Likely to Emerge in 2015

One area where there may be a further increase in state chemical-regulatory legislation in 2015 is the effort to regulate microbeads.  Microbeads are plastic particles generally of less than five millimeters in diameter that are used as abrasives for exfoliation and cleansing in personal care products such as body scrubs, soaps, and toothpaste. Because they are so small, plastic microbeads may not be captured by wastewater treatment plants, making it possible they can make their way into surface water, where they might be ingested by fish and other animals, and potentially by humans if uptake in aquatic life can occur. In addition to questions being raised about microbeads themselves, concerns have been raised that aquatic wildlife also can ingest "hydrophobic" pollutants such as polychlorinated biphenyls, DDT, and polycyclic aromatic hydrocarbons that might have adhered to the surface of the microbeads. Legislation regulating the use of microbeads has been introduced in California, Michigan, Minnesota, New Jersey, New York, and Ohio. Last year Illinois became the first state to enact a law banning microbeads in personal care products. A number of major manufacturers in the personal care product arena already have committed to phasing out their use of plastic microbeads.²

Making it Possible to Keep Up With the States

Arnold & Porter LLP has recently updated the firm's tracking system which provides information on state-level chemical-regulatory legislation. We will continue to update it in 2015 as new bills are introduced.