Shortly after taking office, President Biden announced an “all of government” approach to achieving environmental justice. In Executive Order (E.O.) 14008, “Tackling the Climate Crisis at Home and Abroad,” President Biden stated that his administration would secure environmental justice for all Americans by addressing the disproportionately high and adverse health and environmental impacts in minority communities. In the several months that have passed since E.O. 14008 was issued, federal agencies, including the U.S. Consumer Products Safety Commission (“CPSC”), have begun implementing the administration’s policy by prioritizing equity and evaluating cumulative impacts in their policymaking.

In March 2021, CPSC Acting Chairman Robert Adler released an unprecedented statement emphasizing the CPSC’s “strong and ongoing commitment to diversity and equity.” The first of CPSC’s two-part 2021 Mid-Year Plan seeks to address the disproportionate safety risks that minority communities face with respect to consumer products. Under the plan, the CPSC will conduct safety equity studies to “determine whether there are specific areas of risk within ethnic, racial, socioeconomic, and other diverse populations” that face more danger from high-risk products. Specifically, the study will evaluate safety risks amongst different demographic groups, particularly in falls, drownings, and poisonings. The agency will use this data to inform future outreach and develop equitable safety standards. In addition, the CPSC has allocated funding to safety campaigns that highlight the unique risks and needs of diverse and vulnerable communities. Campaign messaging will include topics such as poison prevention, consumer product chemical safety, and other safety education information targeted to vulnerable communities.

The Mid-Year Plan comes on the heels of a federal appeals court decision issued in the same month, which upheld the CPSC’s ban on harmful phthalate chemicals used in children’s toys and childcare articles. Phthalates have been associated with severe and permanent reproductive and developmental damage, and exposure to phthalates is significantly higher in communities of color. The ban on phthalates in children’s toys was proposed by the CPSC in 2014, but it did not go into effect until early 2018 after environmental and public health NGOs sued the agency to act. In addition, phthalate chemicals are commonly used by the cosmetics industry in products such as hair spray and nail polish. The beauty and cosmetics industry has faced increased scrutiny for its disproportionate environmental and health impacts on women of color. Studies have shown that cosmetics and hair care products advertised to Black women contain more toxic ingredients than products marketed to other ethnic groups. A number of bills have been proposed in Congress to address these environmental health and justice disparities, including the Safe Cosmetics and Personal Care Products Act of 2019.

The CPSC’s focus on equity and product risk and safety is just one of the many ways that federal agencies are achieving and expanding on the goals of the Biden administration. This paradigm shift in the government’s approach to environmental justice will be significant to the retail industry as consumer products will be more heavily scrutinized for their disproportionate impact on minority communities.

In addition to governmental pressures, retailers will likely experience increased scrutiny from private stakeholders. As Environmental, Social, and Governance (“ESG”) investing—a form of sustainable investing that considers a company’s overall impacts—grows in popularity, auditors will more closely evaluate the environmental and public health risks associated with a company’s products and operations. Institutional investors, insurers, and other financial institutions are already relying on ESG metrics to make significant investment decisions. As such, retailers would be wise to develop internal strategies to evaluate the impacts of their operations on disadvantaged communities and incorporate environmental justice objectives into their policies.