On March 27, 2014, the Vermont Senate approved S.239, a bill that would require manufacturers of consumer products to report the presence of “chemicals of high concern” in their products or product components and pay the Vermont Department of Health $2,000 per chemical. Under the bill, the Department also would be authorized to ban the sale of consumer products containing chemicals of high concern. The Vermont House is expected to approve the proposed legislation, and the bill could be enacted into law for an effective date of January 1, 2015.
For the most part, S.239 appears to be narrower in scope than California’s Safer Consumer Products program but, as explained further below, no less problematic.
- The proposed Vermont legislation defines “consumer products” more narrowly than California’s regulations, limiting it to products “regularly used or purchased to be used for personal, family or household purposes.” In contrast, the California program defines the term as “a product or part of the product that is used, bought, or leased for use by a person for any purposes” — thereby including workplace use products within its scope.
- The Vermont Department of Health would be required to identify “chemicals of high concern.” Unlike the California program, which focuses on both human health and the environment, the focus of the Vermont chemical list would be human health only. The human health endpoints of concern also seem to be narrower in scope than the human health endpoints under the California program.
- Under the Vermont bill, all manufacturers of consumer products containing one or more chemicals of high concern would have to submit their respective reports to the Vermont Department of Health; under the California program, responsible entities only for those Priority Products specifically identified by the Department of Toxic Substances Control would have any reporting or other regulatory obligations.
- The Vermont bill imposes its reporting burdens on “manufacturers” whereas the California program establishes a hierarchy of responsible entities (manufacturers, importers, assemblers and retailers) under which manufacturers and importers have primary regulatory responsibilities. That said, the Vermont bill’s definition of manufacturer would capture importers and distributors of imported products in certain circumstances.
- Under the Vermont bill, consumer product manufacturers would not have to undertake safer alternatives analyses as the California program requires. They would, however, have to pay $2,000 per chemical to the Vermont Department of Health.
- The Vermont Department of Health is authorized to ban a consumer product containing one or more chemicals of high concern or require labeling for such products. Under the California regulations, the Department of Toxic Substances Control has broad authority to impose a variety of regulatory responses.
Under the Vermont program, the trigger for reporting is a level of the chemical of high concern in the product that exceeds the “practical quantitation limit” (PQL). PQLs are moving targets: they depend on the chemical, the matrix, the test method used, and the laboratory undertaking the test. It is certainly conceivable that similar products containing the same chemical of high concern may end up with different PQLs; in such a circumstance, a manufacturer of a particular consumer product would have to report, whereas a manufacturer of a virtually identical product would not. Such a nonlevel playing field is bad for business.
Although the Vermont bill addresses the confidentiality of trade secrets and confidential business information in manufacturers’ submissions, it is far from clear what the criteria would be for ensuring protection. Moreover, the Vermont Department of Health would be authorized to publish aggregate information — which may or may not be sufficient to prevent disclosure of critical business information.
With many individual states turning their attention to “green chemistry” type of regulation, each with different scopes and requirements, entities will face ever increasing challenges in doing business and ensuring compliance. It is more imperative than ever to establish a uniform, national approach to chemical regulation.