Green Isn’t Just a Color: Navigating the Green Marketing Legal Landscape

Phil Moffat and Irene Hantman presented on the green marketing legal landscape at the Product Stewardship Conference on September 10, 2019. 

The presentation opened with an overview of green marketing, noting that the number of environmental marketing claims is on the rise, with an attendant increase in the number of claims that are false and/or deceptive. 

Ms. Hantman reviewed the “seven sins” of greenwashing:

  • Hidden Trade-Off
    • No Proof
    • Vagueness
    • Irrelevance
    • The Lesser of Two Evils
    • Fibbing
    • Worshiping False Labels

Ms. Hantman then reported on litigation over green marketing claims.  She noted that green marketing claims have been litigated in federal and state courts, in administrative proceedings before the FTC, and in private forums, and that companies face litigation from federal agencies, state agencies, and from private parties.  First Ms. Hantman discussed the 2017 case ECM Biofilms v. FTC.  That case began when the FTC filed an administrative complaint, ECM then appealed the agency’s findings – that ECM violated the prohibition in section 5 of the FTC Act on the use of deceptive advertising —  all the way to the 6th Circuit Court of Appeals, where the court upheld FTC’s finding. 

Ms. Hantman also reported that Volkswagen paid $570 million for deceptive marketing in a settlement with the Attorneys General for 41 states, Washington, DC, and Puerto Rico.  That settlement was part of the litigation over Volkswagen’s use of defeat devises in “green” diesel cars.

Ms. Hantman then shared information on other FTC enforcement against green marketing claims including, the 2018 settlements against Benjamin Moore, ICP Construction, YOLO Colorhouse, and Imperial Paints for misleading claims that their products were free of emissions and volatile organic compounds (VOCs).  She also reported on FTC’s enforcement against Engineered Plastic Systems in 2014.  That case involved business to business marketing.  Under the final FTC consent order, the company must have credible evidence including scientific proof, to support any environmental benefit claims it makes.

Ms. Hantman also provided information regarding recommendations made by the National Advertising Division (NAD), Better Business Bureau in green marketing cases brought before the NAD by competitors.  She described the Olivet case in which Van Ness Plastic Molding Company challenged Olivet’s claim that its containers are made of recycled materials.  She also described cases involving sustainability and energy savings claims.

Mr. Moffat then provided information on sources of regulation of green marketing claims.  He discussed the role of the NAD in investigating competitor challenges and consumer complaints.  He reported that all states and the District of Columbia have consumer protection statutes.  Mr. Moffat also described private causes of action that consumers and competitors might pursue.

Mr. Moffat then presented information on the FTC Act and the FTC’s Green Guides.  He noted that, section 5 of the FTC Act, 15 U.S.C. § 45, authorizes the FTC to take legal action against “unfair or deceptive” practices in commerce, however the statute doesn’t give FTC the authority to set environmental standards (e.g., testing protocols).  He also explained that the FTC published the Green Guides to help advertisers avoid making deceptive claims under Section 5, stressing that the Green Guides are non-binding administrative interpretations.  The presentation explained that because the Green Guides are non-binding administrative interpretations, they don’t preempt federal, state, or local law; compliance will not necessarily preclude FTC enforcement of Section 5; and that compliance with voluntary standards won’t guarantee Section 5 compliance.

Mr. Moffat explained that the Green Guides apply to claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service to individuals, businesses, or other entities; and that Section 5 applies to environmental claims in any marketing medium, whether asserted directly or by implication. He then reported on principles established by the Guides that focus on avoiding deception: “a representation, omission, or practice is deceptive if it is likely to mislead consumers acting reasonably under the circumstances and is material to consumers’ decisions.”  

The presentation also discussed the need to substantiate claims.  Marketers must identify all express and implied claims that the advertisement reasonably conveys, and ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis.  For environmental marketing claims, a “reasonable basis” often requires “competent and reliable scientific evidence.”

Mr. Moffat provided examples of the specific topics covered by the Green Guides including:

  • General environmental benefit claims,
  • Certifications and seals of approval,
  • Degradable,
  • Free-of,
  • Non-toxic, and
  • Recycled content.

The presentation then discussed general environmental benefits claims.  Mr. Moffat noted that marketers should not make unqualified general environmental benefit claims as it is difficult, if not impossible, to substantiate all express and implied claims.

Mr. Moffat also reported on issues raised by seals of approval and certifications.  He explained that third-party certifications and seals of approval are appealing, but stressed that companies must exercise due diligence because third-party certifications and seals are not a safe haven from enforcement or lawsuits.

Mr. Moffat wrapped up the presentation with examples of when free-of and non-toxic claims can be deceptive.

Click here for a copy of the presentation.

CAA Permitting and NAAQS Review

On April 9, Verdant attorney Kurt Blase addressed the American Coatings Association Powder Coatings Committee on Powder and PM: Permitting and NAAQS Review. The presentation examined the effect of powder coating lines on facility particulate matter (PM) emissions, and the potential effects of EPA’s current review of the PM national ambient air quality standards (NAAQS) on permitting of powder operations.

It was reported that the addition of powder lines at a facility is likely to increase PM permitting requirements, and that permit conditions are likely to be more stringent for facilities located in airsheds that include other significant PM sources. EPA’s progress to date in the PM NAAQS review was then discussed, including the possibility that the review could result in more stringent standards for PM2.5, PM10 or both. If that were to occur, permitting requirements for powder lines may become more stringent as well. EPA is on a schedule to complete the PM NAAQS review by late 2020.

Green Marketing, the FTC’s “Green Guides,” and “Zero VOC”

Phil Moffat presented on Green Marketing, the FTC’s “Green Guides,” and “Zero VOC” at the American Coatings Association’s Conference Making Sustainability Ideas Happen: Coatings For the Future on April 10, 2019.

The presentation opened with an overview of green marketing, noting that the number of environmental marketing claims is on the rise, with an attendant increase in the number of claims that are false and/or deceptive, and that DIY building and construction products are being “greened” more quickly than rest of home and consumer products marketplace. 

The Green Guides

Mr. Moffat then discussed the FTC Act and the FTC’s Green Guides.  He noted that, section 5 of the FTC Act, 15 U.S.C. § 45, authorizes the FTC to take legal action against “unfair or deceptive” practices in commerce, however the statute doesn’t give FTC the authority to set environmental standards (e.g., testing protocols).  He also explained that the FTC published the Green Guides to help advertisers avoid making deceptive claims under Section 5, stressing that the Green Guides are non-binding administrative interpretations.  The presentation noted that because the Green Guides are non-binding administrative interpretations, they don’t preempt federal, state, or local law; compliance will not necessarily preclude FTC enforcement of Section 5; and that compliance with voluntary standards won’t guarantee Section 5 compliance.

Mr. Moffat explained that the Green Guides apply to claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service to individuals, businesses, or other entities; and that Section 5 applies to environmental claims in any marketing medium, whether asserted directly or by implication. He then reported on principles established by the Guides that focus on avoiding deception: “a representation, omission, or practice is deceptive if it is likely to mislead consumers acting reasonably under the circumstances and is material to consumers’ decisions.”  

The presentation also discussed the need to substantiate claims.  Marketers must identify all express and implied claims that the advertisement reasonably conveys, and ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis.  For environmental marketing claims, a “reasonable basis” often requires “competent and reliable scientific evidence.”

The presentation then reviewed a type of claim popular with the building products industry – certifications and seals of approval.  Certifications and seals of approval are often “endorsements” covered by the FTC’s Endorsement Guides, 16 CFR Part 255.  The presentation noted that third-party certifications and seals of approval are appealing, but stressed that companies must exercise due diligence because third-party certifications and seals are not a safe haven from enforcement or lawsuits.

FTC and “Zero VOC”

Mr. Moffat then reported on FTC Enforcement re Zero VOC Claims pre 2017 – 2018 and post 2017-2018 and noted differences between the two.  

In 2017 – 2018 the FTC took enforcement actions against four companies for Zero VOC Claims.  The companies were making variety of claims, such as:

  • Zero emissions,
  • Zero VOC
  • No odor, and
  • Pregnancy/baby safe,
  • Asthma and allergy approved.

The consent agreements that FTC entered into with these companies defined “trace” level of emissions as follows:

  • Intentional Addition: A VOC has not been intentionally added to the product;
  • Material Harm: Emission of the product does not cause material harm that consumers typically associated with emission, including harm to the environment or human health; and
  • Background: Emission of the product does not result in more than harmless concentrations of any compound higher than would be found under normal conditions in the typical residential home without interior architectural coating.

Emission means any compound that is emitted or produced during application, curing, or exposure of a covered product.

Following the 2017-1018 enforcement actions, the FTC’s position is that:

  • Consumers understand “Zero VOC” primarily as an emissions claim;
  • “Emission” is broadly defined to include VOC, as well as other substances emitted and produced (e.g., SVOC, exempts);
  • Zero VOC claims means a prohibition on exceedance of background concentrations during application and drying; and
  • Defines background as “normal” conditions in the “typical” unpainted house.

The presentation noted that the FTC has rescinded the 2013 Enforcement Policy and that the industry should now follow the 2018 Consent Orders and accompanying guidance letters.  The guidance letters suggest that compliance for a Zero VOC claim can be achieved if a company can substantiate that:

  • Its product has trace levels of emissions six hours or less after application and afterwards, and
  • That the paint contains no substance that could cause material harm to the average adult under normal anticipated use.

Mr. Moffat closed the program by stressing that claiming Zero-VOC carries risk.  He observed that companies considering such claims should first ensure the return is worth the legal, commercial, and reputational risks, and then develop an approach to manage those risks, including their approach to substantiation, disclosures, etc.

EPA Draft Guidance helps Distinguish When Biostimulants are Pesticides under FIFRA

On March 27, 2019, EPA published Draft Guidance for Plant Regulator Label Claims, Including Plant Biostimulants.  The guidance is intended to help companies that produce products that the Agency considers to make claims that are considered plant growth regulator (PGR) claims. This is because making PGR claims subjects the products to regulation under FIFRA as pesticides.  According to EPA, “plant biostimulants” (PBS) are a relatively new category of products containing naturally-occurring substances and microbes that are used to stimulate plant growth, enhance resistance to plant pests, and reduce abiotic stress.

A product makes a PGR claim if, through physiological action, it claims to:

  • Accelerate or retards the rate of plant growth;
  • Accelerate or retards the rate of plant maturation; or
  • Otherwise alter the behavior of plants or the produce thereof.

The draft guidance does not provide a definition for “plant biostimulant,” nor does any EPA regulation. The Guidance does provide the following “description” of PBS: 

“Generally speaking, a ‘plant biostimulant’ is a naturally-occurring substance or microbe that is used either by itself or in combination with other naturally-occurring substances or microbes for the purpose of stimulating natural processes in plants or in the soil in order to, among other things, improve nutrient and/or water use efficiency by plants, help plants tolerate abiotic stress, or improve the physical, chemical, and/or biological characteristics of the soil as a medium for plant growth.”

The Agency is asking for comments on whether EPA should develop a definition for plant biostimulants, noting that the development of a definition would require rulemaking.

At the heart of the issue is whether a PBS product, as understood by EPA, physiologically influences the growth and development of plants in such a way as to be considered plant regulators by the Agency, and thereby triggering regulation under FIFRA as a pesticide. FIFRA section 2(u) includes plant regulators in its definition of a pesticide.  

Based on the plant regulator definition contained in FIFRA section 2(v), EPA believes that many PBS products and substances may be excluded or exempt from regulation under FIFRA depending upon their intended uses as plant nutrients (e.g., fertilizers), plant inoculants, soil amendments, and vitamin-hormone products.  

A key consideration in determining whether or not a product is a pesticide is what claims are being made on product labels. The draft guidance is intended to provide assistance for identifying product label claims that are considered to be plant regulator claims by the Agency, thereby subjecting the products to regulation under FIFRA as pesticides. The guidance provides examples of product label claims generally considered “non-pesticidal:”

  • Plant nutrition-based claims (i.e., necessary for normal growth of plants and in a form readily useable by plants);
  • Plant inoculant-based claims (i.e., enhance availability/update of plant nutrients through root system); and
  • Soil amendment-based claims (i.e., intended for the purpose of improving soil characteristics favorable for plant growth).

The guidance also provides examples of generic product label claims generally considered by the Agency to be “non-pesticidal.”  In addition, examples of label claims that are considered by the Agency to be PGR claims that trigger regulation under FIFRA as a pesticide are included.  A list of PGR active ingredients contained in EPA-Registered Products is included as well.

The Federal Register notice announcing the guidance notes that as guidance the document is not binding on the Agency or any outside parties, and that the Agency may depart from it where circumstances warrant and without prior notice.

Irene Hantman to Moderate ABA SEER Program — Controversies in Food Contact

The November Safer Chemicals, Healthy Families Food Contact Report Card pointed a spotlight on food contact substances, leaving consumers to wonder whether they should be concerned about the presence of PFAS and other toxic substances in their food packaging.  A panel of experts in food contact issues will discuss this issue.  The program will also provide background on FDA jurisdiction and key concepts such as TTC (Threshold of Toxicological Concern).  Join key stakeholders in this discussion.

This program is presented by thePesticides, Chemical Regulation, and Right-to-Know Committee, ABA Section of Environment, Energy, and Resources; Food, Cosmetics, and Nutrceuticals Committee, ABA Science and Technology Law Section; Food Safety Specialty Section, Society of Toxicology

Date/Time:
Thursday April 25, 2019, 11:30 – 1:00

Panelists:
Paul Honigfort,  Director, Division of Food Contact Notifications, Center for Food Safety and Applied Nutrition
Mitch Cheeseman, Steptoe
Tom Neltner, Environmental Defense Fund
Kevin Kenny, Decernis

Moderator:
Irene Hantman, Verdant Law

Location:
Verdant Law, 10 G Street NE, Washington, DC
(Remote participation is also available.)

To register for the program contact Andrew Sitko at admin@verdantlaw.com

EPA publishes the Initiation of Prioritization under the Toxic Substances Control Act

On March 21, 2019, EPA published the Initiation of Prioritization under the Toxic Substances Control Act (TSCA).  In the Federal Register notice, the Agency announced that it is initiating the prioritization process for 20 chemical substances as candidates for designation as High Priority Substances for risk evaluation and 20 chemical substances as candidates for designation as Low Priority Substances for risk evaluation.  Under the amended TSCA High Priority Substance and Low Priority Substance are defined as follows:

  • High Priority Substance.  A chemical substance that EPA determines, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA.
  • Low Priority Substance.  A chemical that EPA concludes, based on information sufficient to establish, without consideration of costs or other non-risk factors, does not meet the statutory criteria for designation as a High Priority Substance.

The Agency noted that the initiation of prioritization for a substance as a High Priority candidate is not a finding of risk by EPA.

To identify candidates for designation as High Priority Substances, the Agency primarily considered the TSCA Work Plan Chemicals.  EPA then collected information from reasonably available sources.  The Agency evaluated the information across a number of data elements including hazard, exposure, uses, and physicochemical, fate, and transport properties.  Substances were then reviewed for data availability across all data elements.  EPA also considered chemical similarity, similar identified functions (e.g., solvents, phthalates, flame retardants), existing EPA Office of Pollution Prevention and Toxics (OPPT) work (e.g., experience gained from the first ten chemicals to undergo risk evaluation) and other information as identified in available risk assessments (e.g., IRIS, ECHA), and public literature.  In addition, the Agency used information such as the 2016 CDR reported uses and products to inform prioritization.  (EPA noted that the Agency’s  working approach to selecting candidates for designation as High Priority Substances for risk evaluation is outlined in the document, A Working Approach for Identifying Potential Candidate Chemicals for Prioritization.)  

The Agency has identified the following substances as candidates for designation as High Priority Substances candidates:

1.      1,3-Butadiene (CASRN 106-99-0)

2.      Butyl benzyl phthalate (BBP) (1,2-Benzenedicarboxylic acid, 1-butyl 2-(phenylmethyl) ester) (CAS RN 85-68-7)

3.      Dibutyl phthalate (DBP) (1,2-Benzenedicarboxylic acid, 1,2-dibutyl ester) (CAS RN 84-74-2)

4.      1,1-Dichloroethane (CASRN 75-34-3)

5.      1,2-Dichloroethane (CASRN 107-06-2)

6.      1,2-Dichloropropane (CASRN 78-87-5)

7.      Dicyclohexyl phthalate (1,2-Benzenedicarboxylic acid, 1,2-dicyclohexyl ester) (CASRN 84-61-7)

8.      Di-ethylhexyl phthalate (DEHP) (1,2-Benzenedicarboxylic acid, 1,2-bis(2-ethylhexyl) ester) (CASRN 117-81-7)

9.      Di-isobutyl phthalate (DIBP) (1,2-Benzenedicarboxylic acid, 1,2-bis(2-methylpropyl) ester) (CASRN 84-69-5)

10.    Ethylene dibromide (Ethane, 1,2-dibromo-) (CASRN 106-93-4)

11.    Formaldehyde (CASRN 50-00-0)

12.    1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]
-2-benzopyran (HHCB) (CASRN 1222-05-5)

13.    4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA) (CASRN 79-94-7)

14.    o-Dichlorobenzene (Benzene, 1,2-dichloro-) (CASRN 95-50-1)

15.    p-Dichlorobenzene (Benzene, 1,4-dichloro-) (CASRN 106-46-7)

16.    Phosphoric acid, triphenyl ester (TPP) (CASRN 115-86-6)

17.    Phthalic anhydride (1,3-Isobenzofurandione) (CASRN 85-44-9)

18.    trans-1,2- Dichloroethylene (Ethene, 1,2-dichloro-, (1E)-) (CASRN 156-60-5)

19.    1,1,2-Trichloroethane (CASRN 79-00-5)

20.    Tris(2-chloroethyl) phosphate (TCEP) (Ethanol, 2-chloro-, 1,1′,1”-phosphate) (CASRN 115-96-8)

To identify potential Low Priority Substance candidates, EPA started with the over 30,000 chemicals from the April 2018 interim update of the TSCA active inventory.  EPA identified potential Low Priority Substance candidates by looking for those that present low-hazard across a range of endpoints.  EPA first narrowed the candidate pool to chemicals that had been evaluated by a government body like the US EPA or an Organisation for Economic Co-operation and Development (OECD) member nation.  This created a pool of approximately 1,600 potential Low Priority substances. The Agency then filtered the pool of approximately 1,600 chemicals to approximately 200 substances which have discretely defined structures. Substances with discrete structures were selected to increase confidence in the information on hazards.  EPA further filtered the chemicals with discrete structures and selected those with the most available data, narrowing the pool to about 75 chemicals with low hazard status among an internationally accepted set of endpoints.  The Agency applied a final screen by conducting a literature search to update and verify candidate information for reliability, completeness and consistency. (EPA will make transparent literature search documentation available at the proposal phase for the 20 Low Priority Substance candidates.) 

The Agency has identified the following substances as candidates for designation as Low Priority Substances candidates:

1.      1-Butanol, 3-methoxy-, 1-acetate (CASRN 4435-53-4)

2.      D-gluco-Heptonic acid, sodium salt (1:1), (2.xi.)- (CASRN 31138-65-5)

3.      D-Gluconic acid (CASRN 526-95-4)

4.      D-Gluconic acid, calcium salt (2:1) (CASRN 299-28-5)

5.      D-Gluconic acid, .delta.-lactone (CASRN 90-80-2)

6.      D-Gluconic acid, potassium salt (1:1) (CASRN 299-27-4)

7.      D-Gluconic acid, sodium salt (1:1) (CASRN 527-07-1)

8.      Decanedioic acid, 1,10-dibutyl ester (CASRN 109-43-3

9.      1-Docosanol (CASRN 661-19-8)

10.    1-Eicosanol (CASRN 629-96-9)

11.    1,2-Hexanediol (CASRN 6920-22-5)

12.    1-Octadecanol (CASRN 112-92-5)

13.    Propanol, [2-(2-butoxymethylethoxy)methylethoxy]- (CASRN 55934-93-5)

14.    Propanedioic acid, 1,3-diethyl ester (CASRN 105-53-3)

15.    Propanedioic acid, 1,3-dimethyl ester (CASRN 108-59-8)

16.    Propanol, 1(or 2)-(2-methoxymethylethoxy)-, acetate (CASRN 88917-22-0)

17.    Propanol, [(1-methyl-1,2-ethanediyl)bis(oxy)]bis- (CASRN 24800-44-0)

18.    2-Propanol, 1,1′-oxybis- (CASRN 110-98-5

19.    Propanol, oxybis- (CASRN 25265-71-8

20.    Tetracosane, 2,6,10,15,19,23-hexamethyl- (CASRN 111-01-3)

EPA is providing a 90-day comment period and requests that interested persons voluntarily submit relevant information. Relevant information might include, but is not limited to, information that may inform the screening review (see 40 CFR 702.9(a)).

EPA Cites Chemours for TSCA Violations

On February 14, 2019, EPA sent a Notice of Violation (NOV) to Chemours identifying TSCA violations at the company’s Fayetteville Works facility in Fayetteville, NC and at the company’s Washington Works facility near Parkersburg, WV.  The NOV identifies a number of section 5 violations, including a violation of the TSCA Section 5(e) Consent Order for the manufacture of GenX, a perfluorinated chemical.  The violations include:

  • Failure to submit a SNUN for a CBI substance subject to a SNUR restricting its annual production to 10,000 pounds.
  • Failure to submit a PMN for one chemical substance that was manufactured for a commercial purpose and not listed on the TSCA inventory.
  • Failure to submit a SNUN for hexafluoropropylene oxide (HFPO). (HFPO is manufactured at the Fayetteville facility to be used as part of the manufacture of other perfluoroalkyl substances (PFAS).)
  • Failure to properly control the effluent and emissions during the use of GenX as required by a 2009 TSCA Section 5(e) Consent Order.  (Among other things, the Consent Order states that Chemours “shall recover and capture (destroy) or recycle” GenX chemical substances “at an overall efficiency of 99% from all the effluent process streams and the air emissions (point sources and fugitive).”) 

Chemours was also cited for CDR violations.

The NOV references the July 31, 2018 Compliance Monitoring Inspection Report for Washington Works Facility and the April 24, 2018 Compliance Monitoring Inspection Report for Fayetteville Facility.  Those reports explain that EPA became aware of community concerns about the alleged release of potentially harmful chemicals into the Cape Fear River by Chemours’ Fayetteville Works Facility in June 2017.  The Agency inspected the Fayetteville facility later that month.  The Washington Works facility was inspected as a follow up in October 2017.  Both reports discuss the Consent Order.  In the Consent Order EPA expressed concerns that the GenX substances (perfluorinated alphatic carboxylic acid and perfluorinated alphatic carboxylic acid, ammonium salt) would persist in the environment, could bioaccumulate, and be toxic (“PBT”) to people, wild mammals and birds. 

The Agency’s concerns were based both on data on the GenX substances and on their similarity to perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  In addition to discharge restrictions, the Consent Order imposed significant worker personnel protective equipment requirements, including that workers who may be exposed via inhalation must wear respirators with a NIOSH Assigned Protection Factor of 3000, and that Chemours must distribute the substances to only those customers that agree to require those respirators.  The Consent Order also limited the levels of the GenX substances as residuals in polymers to below 200 ppb.

The NOV noted that EPA continues to investigate and review information concerning the compliance status of these facilities.  It reminded the company that the Agency had requested information from Chemours, that it had not yet received, documenting when the company first learned about the GenX-related contamination around the facilities, including GenX contamination in drinking water.  The NOV also reminded the company that submission of that information is significant to Chemours’ compliance with the reporting requirements under TSCA Section 8(e) regarding substantial risk information.  EPA asked the company to, within 30 days, submit an outline of its action plan and time-frame for coming into compliance with TSCA.

EPA Announces Changes to PMN Review – Clearer Policy on “Possible Future Uses”

At the 2019 GlobalChem conference, Greg Schweer, the EPA Chief of the New Chemicals Management Branch said that the Agency now has a clearer policy to identify possible future uses of new chemical substances in its Premanufacture Notification (PMN) evaluations, reports Bloomberg Environment. The Lautenberg amendments to the Toxic Substances Control Act (TSCA) require EPA to consider “conditions of use” in the review and determination of PMNs  The amendments defined conditions of use as “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  Possible future uses is part of the “conditions of use” review. 

According to Bloomberg Environment, Schweer also stated that “EPA also may be able to allow more new chemicals [to] enter commerce without placing unwarranted manufacturing or use restrictions on the company that originally requested to produce the new compound.” 

When it becomes available, we will post a copy EPA’s new policy on reasonably foreseen uses.  In the interim, information about the EPA PMN process is available here.

EPA Releases PFAS Action Plan

On February 14, 2019, EPA released a Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. The Plan identifies both short- and long-term action items the Agency will take to address current PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS.  These action items include:

  • Drinking water: EPA is moving forward with the maximum contaminant level (MCL) process outlined in the Safe Drinking Water Act for PFOA and PFOS—two of the most well-known and prevalent PFAS chemicals. By the end of this year, EPA will propose a regulatory determination, which is the next step in the Safe Drinking Water Act process for establishing an MCL.
  • Clean up: EPA has already begun the regulatory development process for listing PFOA and PFOS as hazardous substances and will issue interim groundwater cleanup recommendations for sites contaminated with PFOA and PFOS.
  • Enforcement: EPA will use available enforcement tools to address PFAS exposure in the environment and assist states in enforcement activities.
  • Risk Communications: EPA will work across the agency—and the federal government—to develop a PFAS risk communication toolbox that includes materials that states, tribes, and local partners can use to effectively communicate with the public.
  • Developing toxicity values or oral reference doses (RfDs) for GenX chemicals and perfluorobutane sulfonic acid (PFBS).
  • Developing new analytical methods and tools for understanding and managing PFAS risk.
  • Promulgating Significant New Use Rules (SNURs) that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns.

EPA Proposes Non-Consent-Order SNURs for 13 Chemical Substances

On October 16, 2018, the Environmental Protection Agency (EPA) issued a proposed rule that would establish Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) for 13 chemical substances for which premanufacture notices (PMNs) have been approved during the two years since the statute was amended. A total of 6 SNURs were proposed for these 13 substances. Unlike other recent SNURs enacted after TSCA was amended, the 13 chemical substances are not also subject to consent orders. Indeed, all previously proposed and final SNURs for PMNs under amended TSCA were for substances for which EPA had previously negotiated orders under TSCA Section 5(e).

The proposed SNURs would require that persons who intend to manufacture (including import) or process any of the 13 chemical substances for an activity that is designated as a significant new use submit a “Significant New Use Notice” to EPA at least 90 days before commencing that activity. And, consistent with the SNUR regulations at 40 CFR § 721.25, the proposed rule states that persons may not commence the manufacture or processing for the significant new use until EPA has conducted a review of the notice and decided on the notice, and the person has taken any actions as are required as a result of that determination. Comments on the proposed SNURs are due November 15, 2018.