Pending TSCA Reform Legislation, the States Continue to Take Action on Chemicals

With Congress poised to take potentially definitive action to update the aging federal Toxic Substances Control Act (TSCA), activist state legislators are continuing to introduce bills that would impose requirements on chemical substances believed to present risks to their states' citizens. Such state legislation continues to fuel the desire for strong TSCA reform legislation that might meaningfully preempt such state actions; however, to gain political support from Democrats, Republican sponsors have out of necessity moved to weaken preemption language in earlier proposals. Doing so has allowed passage of a bill in the House and has moved a Senate bill through committee. The stage has been set for a possible conference committee effort later this year to patch together the most favored components of the two bills. In the meantime, it appears some states want to take advantage of a preemption provision common in both the Senate and House bills that would grandfather in state chemical-regulatory laws enacted before August of 2015. State actions under consideration have ranged from those which completely prohibit a specific chemical substance and products that contain the chemical, to laws enabling a state agency to identify and list "priority" chemicals for which makers of products containing the listed substances must fulfill certain obligations.

Manufacturers, importers, and retailers face a great challenge trying to keep up with emerging state chemical regulatory requirements. Our previous advisories¹ have discussed the nature and varieties of state chemical regulatory legislations, and have provided context for understanding why such legislation has gained popularity. We also have provided resources for readers to identify legislation of interest to them and track its progress. This advisory provides updates on the latest developments.

State Legislative Efforts in 2015

Although many state legislatures have already completed their sessions, potentially far-reaching legislation is still pending in a few states. In Oregon, the legislature has passed the Toxic-Free Kids Act (SB 478), which now awaits action by the governor. The legislation would establish a list of "high priority chemicals of concern for children's health" and would eventually require the removal of or substitution for such chemicals in children's products that are mouthable, or that are children's cosmetics or marketed for children under three years of age.

In California, a pending bill (SB 763) would impose labeling requirements for children's products containing flame retardant chemicals above a 1,000 parts per million threshold. The legislation would also require statements regarding products' flame retardant content to appear in catalogs and on websites where children's products are sold.

A few new state chemical control laws have made it onto the books. In Minnesota, starting in July 2018, a new law (SF 1215) will prohibit the manufacture, sale, and distribution of children's products and upholstered residential furniture that contain any of the following flame-retardant chemicals in amounts exceeding 1,000 parts per million: TDCPP (tris(1,3-dichloro-2-propyl)phosphate), decaBDE (decabromodiphenyl ether), HBCD (hexabromocyclododecane), and TCEP (tris(2-chloroethyl)phosphate).

New laws have also included, as anticipated, a number of bans on personal care products such as body scrubs that contain synthetic plastic microbeads. Microbead bans have passed in Colorado (HB 15-1144), Indiana (HB 1185), Maine (LD 85), Maryland (HB 216), New Jersey (A3083/S2178), and Wisconsin (SB 15), and are still pending in other states, including California, Massachusetts, Michigan, and Ohio.

California Requires Additional Mention

Since our last Advisory, California's Green Chemistry Initiative (Initiative) has continued to build momentum with the Department of Toxics Substances Control's (DTSC) release of its final Priority Product Work Plan for 2015-2017 (Work Plan) on April 16, 2015.² The Work Plan identified seven new product categories and potential candidate chemicals that may be evaluated for regulation under the Initiative over the next three years. Following is the list of new product categories and potential candidate chemicals identified in the Work Plan:

• Beauty/Personal Care/Hygiene: Skin Products, Personal Hygiene Products, Hair Products, and Cosmetics and Fragrances (Aldehydes, Formaldehyde; Alkyl phenol ethoxylates (APEs); Azo Dyes, Coal Tars, Lead, and Lead Acetate; Phthalates; Triclosan; and Toluene)
• Building Products (Painting Products, Adhesives, Sealants, and Flooring): Adhesives and Glues, Carpeting and Carpet Padding, Engineered Wood and Laminate Flooring, Paints and Primers, Paint and Graffiti Removers, Roof Coatings, Sealants, and Vinyl Flooring (Brominated or Chlorinated Organic Compounds, Organophosphates; Isocyanates; Metals, such as Chromium VI; Perfluorochemicals (PFCs); Phthalates; and Volatile Organic Compounds (VOCs), such as Formaldehyde, n-hexane, n-methylpyrrolidone, and Toluene)
• Household/Office Furniture/Furnishings with PFCs, flame retardants: Bedding, Curtains, Fabric and Textile Furnishings, and Household and Office Seating (Chlorinated and Brominated Organic Compounds, Organophosphates; and Perfluorochemicals)
• Cleaning Products: Fresheners and Deodorizers, Cleaners, Laundry, and Surface Care (APEs; Hydrogen Fluoride; Phthalates; and Triclosan)
• Clothing: Full Body Wear, Lower Body Wear and Bottoms, Sleepwear, Sportswear, Underwear, and Upper Body Wear and Tops (APEs; Aromatic Amines and Azo Dyes; Perfluorochemicals, Formaldehyde; Phthalates; and Triclosan)
• Fishing and Angling Equipment: Fishing Weights (Metals)
• Office Machinery Consumable Products: Inks and Toners, and Thermal Paper (Azo Dyes; Bisphenols; Phthalates; and VOCs such as Hexane, Toluene, and Xylene)

DTSC plans to issue its next Priority Products Work Plan in 2017, which will cover the time period 2018-2020.

Keep Up With the States

Arnold & Porter LLP has updated the firm's tracking system to highlight enacted and pending state legislation.

Also contributing to this Advisory:

Margaret Barry* and Evelyn Redmond

*Environmental Law Writer