Continuing Rise in State Efforts to Regulate Chemicals

As the legislative opportunities for reforming the federal Toxic Substances Control Act (TSCA) flounder, numerous states are enacting or entertaining laws which regulate, and in some cases completely prohibit, certain chemical substances. Such 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. The legislation, on its face, often seems innocuous – what state legislator could say "no" to a vote in favor of a bill enabling state officials to identify and post a list of "chemicals of concern"? The potential consequences of such laws have yet to be determined, and the difficulty of keeping up with 50 states' requirements can be daunting on the entities perhaps most affected by the bills: makers of commercial and consumer use products that might contain a listed chemical.

Impetus for State Action

During the course of the past decade, consumers have developed a greater awareness of the presence of certain substances in commercial products. In the United States, it is arguable that awareness and concerns about chemicals might have its basis in the efforts of multiple non-governmental organizations (NGOs) to create and enhance such awareness.¹ Plaintiffs law firms have an interest in fomenting such concerns.² The federal government and some national governmental authorities abroad also have commitments to raising consumer awareness through efforts to enhance "transparency" reflecting the "right to know" movement.³ The rise in awareness and concerns about chemicals in products has also been fueled by increased access to, and reliance upon, information concerning chemical substances conveyed via the internet. Thus, individual consumers are now able to communicate with one another directly to retransmit information gained from a variety of the forgoing sources purporting it to be reliable and sound. The extent to which public awareness about chemicals of concern can influence consumer behavior has been observed and noted in the literature for nearly a decade⁴ and is being actively observed and monitored today.⁵

Certainly consumer movements and NGO actions have prompted some state actions to regulate chemicals. Some attribute the rise in state regulatory actions affecting chemicals to a lack of action on the part of the federal government, and the EPA's inability to effectively make use of TSCA for this purpose for nearly 40 years.⁶ Perhaps ironically, Congressional efforts at reforming and reinvigorating TSCA might be prompting campaigns enhancing consumer awareness of chemicals in products⁷ and specifically incentivizing state chemicals-regulatory actions due to fears on the parts of certain state governments about federal preemption combined with a lack of action from EPA.⁸ The federal government seemingly has done nothing to discourage state regulatory actions.⁹

Stakeholders Affected by State Initiated Chemicals Regulation

The emergence of multiple and potentially inconsistent state laws regulating chemical substances has drawn concern from many quarters. Although there is some indication that certain states are coordinating their approach on some issues, there is by no means uniformity among the chemical-regulatory statutes in effect and under consideration at the state level.¹⁰ For entities in the chemicals industry, and makers of consumer use products that incorporate chemicals, the lack of uniformity has created a number of challenges, including the need to develop state-by-state strategies for product manufacturing, compliance assurance, regulatory tracking, and supply chain management. These strategies also must continue to take into account requirements under TSCA and EPA's other enforcement authorities.

The patchwork of state laws also may be viewed as problematic by NGOs and other policy groups that have been working to promote more efficient and meaningful data collection on chemical substances. Requiring the makers of consumer products distributed and sold nationally to collect and report different types of data for multiple chemical substances may potentially detract from efforts to amass high quality data available in a uniform format and central location.

"Typical" State Chemical-Regulatory Legislation

Although state legislation regulating chemicals in products has taken a variety of forms, much of this legislation falls into two general categories. In the first category, the state legislation is very specific, banning the use of specific chemical substances in only certain products. For example, Minnesota recently banned use of the antimicrobial chemical triclosan in certain consumer hygiene products.

In the second category, the legislation that has been enacted is much broader in scope. These laws often authorize a state regulatory agency to create a list of "priority chemicals" or "chemicals of high concern" based on the agency's assessment of chemicals' potential adverse impacts on human health and the environment. The laws often then require manufacturers of products containing some or all of the listed chemicals to notify the state of the chemical's use and perhaps conduct an "alternatives assessment" to determine if there is a superior substitute for the chemical – one that is both "feasible" and presumably has comparatively fewer environmental impacts. The commercial goods that fall within the scope of such legislation range from all products, to consumer products, to children's products, or to only those products specifically listed by a state agency. Based on the results of the alternatives assessment, the state agency might ban or restrict the use of the chemical in question in certain products. The California Safer Consumer Products Regulation, also known as the Green Chemistry Initiative, is an example of such legislation – and it has understandably garnered significant attention. While at the outset the California program is limited to a handful of chemicals and products, many anticipate that it will significantly grow in scope in the future. Indeed, California's Department of Toxic Control Substances very recently issued a Draft Work Plan that targets seven categories of products for Green Chemistry review, some of which were widely anticipated (personal care and household cleaning products), and others that were not (fishing equipment).

Both types of chemical-regulatory legislation – specific and broad – create compliance challenges for manufacturers and distributors of chemicals used as raw materials and the makers of products incorporating them. The stakes can be high, as many states' chemical-regulatory laws include provisions for penalties when violations occur, such as House Bill 3997 proposed in Massachusetts earlier this year. The emergence of such legislation means that all manufacturers and distributors must closely monitor chemicals laws and regulations in all states for compliance purposes. This can be a difficult undertaking when coupled with the emergence of an increasing number of chemicals-related requirements being imposed by retailers upon their product suppliers.¹¹

Keeping Up With the States

In the absence of a federal chemical-regulatory program that states perceive to be an enhancement to the current federal program overseeing chemicals in commerce or legislation which specifically preempts state chemicals legislation, activist states are expected to continue legislating actively in this area. This likely will result in new and expanded state chemical initiatives with varying levels of consistency among them.