Environment & Natural Resources

A month in advance of its October 31, 2013 statutory deadline, California’s Department of Toxic Substances Control (DTSC) on September 26, 2013 released its preliminary lists of Candidate Chemicals under the state’s newly enacted Green Chemistry Initiative.  The Green Chemistry regulations, which officially took effect today, require certain “Priority Products” to go through a rigorous “alternatives analysis” to evaluate their environmental and public health risks and determine if there are safer substitutes.  The first five Priority Products will be announced by April 1, 2014.

The full list sets forth roughly 1,200 chemical substances that could potentially be regulated. However, DTSC is expected to select its initial Priority Products from a shorter list of 164 chemicals.  Subsequently, additional Priority Products may be selected based on the full list of Candidate Chemicals.

Companies should review these lists carefully to identify any chemicals that they manufacture, import, or purchase for use in their products.  Keep tuned to this space for more updates on California’s Green Chemistry Initiative as it is rolled out over the next year.

Content for this post provided by Crowell & Moring partners Warren Lehrenbaum, Cheryl A. Falvey, and Kevin C. Mayer, and associate Joshua Kaplowitz.

Retailers need to begin thinking right now about how they will handle their compliance obligations under the new Safer Chemicals Regulations in California, which go into effect on October 1, 2013.  Under the regulations, identified Chemicals of Concern will be paired with Priority Products and then Responsible Parties will be required to submit an alternatives assessment to California’s Department of Toxic Substances Control.  Retailers are already requiring product suppliers to provide assurances of compliance with state and federal regulatory requirements for their products.  While waiting to see what chemical and product pairs emerge under the new California regulatory regime, retailers are planning right now. Will they continue to sell those products in California, require that they be reformulated, or actively participate in the alternative assessment process and, if so, how? Product manufacturers need to get ahead of these issues and work with retailers to plan a coordinated approach to compliance.  Read our alert to learn the details regarding this new chemical regulatory regime:  California Finalizes Green Chemistry Regulations – Client Alert.

Content for this post provided by Crowell & Moring partners Warren Lehrenbaum, Cheryl A. Falvey, and Kevin C. Mayer, and associate Joshua Kaplowitz.


On Wednesday, September 4, 2013 from 2:00-3:30 pm EST, a Crowell & Moring team of regulatory and public policy attorneys, along with a subject-matter expert from Exponent, will host a webinar examining the current status of TSCA modernization efforts and the potential impacts on manufacturers and importers.  The discussion will include an analysis of the Chemical Safety Improvement Act of 2013, a bill introduced in the Senate earlier this summer that could have profound implications for companies that manufacture or import consumer or industrial products that are made using routine chemical products, such as coatings, paints, adhesives, and insulators, among others.  This proposed bill may create new review requirements, safety standards, and reporting and certification requirements for chemical substances.  Speakers include Cheryl A. Falvey, Warren Lehrenbaum, and Josh Tzuker from Crowell & Moring and John Phillips from Exponent.  For more information about this upcoming webinar and to register, click here.

The Juvenile Products Manufacturers Association (JPMA) announced today a legislative proposal to ensure that car seats manufactured for sale in the United States no longer need to contain allegedly hazardous flame retardant (FR) chemicals. The bill, which will likely be introduced later this week, allows manufacturers the flexibility they need to build car seats that are smolder resistant without necessarily introducing FR chemicals into the materials used in manufacture. While the bill would repeal federal flammability regulations, car seats will still need to meet NHTSA test procedures on performance standards for belts, buckles, seat bottoms, armrests, and headrests. Car seat manufacturers must still report to NHTSA failures to satisfy the testing requirements, as well as any other safety-related defects concerning their car seats. NHTSA has the authority to conduct recalls of products that fail to meet the testing regulations or that contain safety-related defects. Regardless of whether there is a defect or failure to satisfy testing requirements, car seat manufacturers must also provide the following information to NHTSA on a quarterly basis: 1) production information, 2) information on incidents involving death or injury, 3) number of consumer complaints and warranty claims, and 4) copies of field reports. At their announcement event at the House Rayburn office building, JPMA reaffirmed their commitment to safety and the JPMA certification process. JPMA stated that their certification program helps their members supply parents with products that meet or exceed federal safety standards.

Retailers face serious challenges in complying with their obligations under Resource Conservation and Recovery Act (“RCRA”) and other federal environmental statutes in light of the wide variety of retail products covered by EPA’s waste disposal regulations. EPA recently expressed its intent to consider future rulemaking under RCRA governing retail products unsold, returned, or removed from shelves for inventory changes or recalls. According to the Unified Agenda, a Notice of Data Availability on the issue was planned for March 2013, though EPA has yet to put forth any information or guidance on the subject. EPA’s recent enforcement efforts and multi-million dollar settlement of RCRA and other claims against Wal-Mart underscore the agency’s escalating interest in retail waste and impacts that could reach beyond Wal-Mart to other retail vendors that handle similar waste streams.

Retailers attempting to comply with RCRA should have compliance programs sufficient to ensure they meet RCRA generator requirements and avoid the shipment of hazardous wastes from warehouses and reverse distribution centers. EPA’s consent decree also requires annual monitoring plans to identify new products that are hazardous wastes when disposed of, employee training requirements, development of an environmental management system, maintenance of a hazardous waste electronic database available to all workers to aid in the identification of hazardous wastes, and development of standard operating procedures relating to environmental compliance.Click here for further information on EPA’s RCRA activity.

Click here for further information on EPA’s RCRA activity.

For more information on the Wal-Mart settlement, visit EPA’s website.

This post was co-authored by Crowell & Moring attorneys Dawn Miller, Warren Lehrenbaum and Cheryl Falvey.

The Environmental Protection Agency (“EPA”) has announced that it plans to explore future rulemaking on the management of “waste retail products” under the Resource Conservation and Recovery Act (“RCRA”).  Waste retail products include unsold or returned retail products which may at some point become hazardous waste under current RCRA regulations.  According to the Unified Agenda, “[b]ecause of the wide range of products that can become waste, retailers find it difficult to comply with the RCRA hazardous waste regulations that were designed for manufacturing and other types of industry wastes.”  As a result, EPA has expressed an intent to issue a Notice of Data Availability sometime this month identifying relevant information and data, and soliciting additional information and comments from interested stakeholders and the public. Click here for further information. 

This post was authored by Dawn Miller, an associate in Crowell & Moring’s Washington, D.C. office.  She practices in the firm’s Environment, Energy & Resources Group. 

By email dated December 14, 2012, the Environmental Protection Agency (EPA) withdrew its controversial direct final rule requiring the reporting of existing and unpublished health and safety data for cadmium and cadmium compounds used in consumer products pursuant to section 8(d) of the Toxic Substances Control Act (TSCA). In its email, EPA admitted that "there is significant confusion and uncertainty within certain industrial sectors concerning the rule." EPA went on to indicate that it "will withdraw the immediate final rule and will sign a Federal Register notice announcing this decision no later than the January 2, 2013, effective date of the immediate final." EPA will be considering the questions and concerns raised in response to the immediate final rule and next steps with regard to this rule.

Continue Reading EPA Reverses Course and Promises to Withdraw TSCA Section 8(d) Cadmium Rule

Although not approved by the FDA, triclosan is a common antibacterial agent in a number of household cleaning and personal hygiene products sold in the United States, including soaps, deodorants, hand-sanitizers, toothpastes, and mouth wash. In recent years, manufacturers have also expanded the use of triclosan as an antimicrobial in cosmetics, socks, workout clothes, and toys.

On August 14, 2012, researchers from the University of California, Davis, and the University of Colorado published findings suggesting that the antibacterial ingredient triclosan causes muscle weakness. The researchers observed that after exposure to triclosan, heart muscles in mice showed a diminished ability to contract, and that fish exposed to the ingredient showed reduced swimming activity. Triclosan has been previously scrutinized for its disruptive effects on the body’s endocrine system and whether its use promotes the creation of bacteria that are resistant to antibiotics.

Some companies have already responded to increased public concerns about triclosan by taking steps to remove it from their product lines. Last year, for example, a major manufacturer of oral care, personal care, and home care products announced it was removing triclosan from most of its home-care products, and more recently a multi-national manufacturer of personal hygiene and other products followed suit announcing that it is phasing triclosan out of its beauty and baby care products.

Companies that have incorporated triclosan into their products should develop risk mitigation strategies to prepare for the inevitable class action lawsuits aimed at deep corporate pockets. At a minimum, manufacturers and users of triclosan products should closely monitor new research, FDA and EPA comments, and developing governmental actions impacting the continued use of triclosan.

For more information, see the full alert at the link below.


Content for this post was provided by the following product risk management attorneys in Crowell & Moring’s Washington, DC office: Monica M. Welt (counsel) and John Fuson (partner). 

On July 27, 2012, California released a revised draft of its Safer Consumer Products Regulations—commonly known as the "Green Chemistry Initiative." The proposed regulations establish a process for California’s Department of Toxic Substances Control (DTSC) and product manufacturers to assess whether consumer products containing certain "chemicals of concern" can be made with safer ingredients. Once implemented, the regulations will empower DTSC to order companies to use substitute chemicals when manufacturing certain consumer products or face a ban on the sale of those products in California. Moreover, manufacturers that currently sell products only outside of California will have to be increasingly vigilant about whether their products end up being sold in California, and subject to these regulations.

Manufacturers, importers and retailers of consumer goods—defined as "responsible entities"—should be aware of that:

  • All consumer products will be impacted: Regardless of whether the product is named a “priority product” by DTSC or contains one of the 1,200 “chemicals of concern,” responsible entities will be required to provide information on the source, ingredients, and toxicity characteristics of each of their consumer products sold in California. Responsible entities with a "priority product" in the stream of commerce will have a heightened obligation to produce detailed reports—known as "alternatives assessments"—to DTSC, which DTSC will use to determine whether manufacturers will need to reformulate certain products to continue sales in California. Companies that do not comply will be named on a publicly accessible "failure to comply" list on DTSC’s website.
  • All entities in the distribution chain should remain vigilant: While the obligations for responsible entities under the regulations are tiered, no level of commerce is exempt. Primary reporting and compliance responsibility will lie with the manufacturer. The importer will have responsibility if the manufacturer fails to comply, and retailers will be required to comply only if the manufacturer and importer (if any) fail to comply. Retailers will be responsible for tracking information posted on a "Failure to Comply" list on DTSC’s website, and ensuring compliance for listed products.

The proposed regulations are presently undergoing a 45-day public comment period. DTSC intends to issue final regulations by the end of this year or early 2013. DTSC will hold a hearing on the proposed regulations on September 10, 2012, and written comments are due by September 11 at 5 PM PST.

For more information and to read the full client alert, please click on this link.

Content for this post was provided by the following product risk management attorneys: Kevin C. Mayer (partner in Crowell & Moring’s Los Angeles office), Monica M. Welt (counsel in Crowell & Moring’s DC office), and Lynn R. Levitan (counsel in Crowell & Moring’s Los Angeles office). 

Readers of the Retail Law Observer are invited to join us on Tuesday, January 24, 2012 at 2:00 p.m. EDT for a complementary webinar entitled “Is California a Canary in the Coalmine? Emerging Trends and the Future of Chemical Regulation in California.” I will moderate the panel, which will include Crowell & Moring partners Warren Lehrenbaum and Kevin Mayer.

The webinar will be of particular interest to retailers doing business in California. During the last decade, the chemical industry has experienced unprecedented changes in the regulatory and litigation environment. The traditional regulatory paradigm relating to human health and environmental protection is being supplanted by more precautionary and public policy-based approaches. This shift has increased costs not only for chemical and product manufacturers, but also for retailers that sell those products.

Our panel will explore the political, scientific and legal aspects of this paradigm shift and focus on specific burdens imposed on product manufacturers by California’s Proposition 65 and Green Chemistry initiatives. Specific guidance will also be provided. Please click on the link to register.