FTC warns users and providers of environmental certification seals.

Earlier this month, the Federal Trade Commission (FTC) sent warning letters to five providers of environmental certification seals and 32 businesses using those seals on their websites. The FTC is concerned that the seals may be deceptive according to Section 5 of the FTC Act, and may not comply with the agency’s environmental marketing guidelines, known as the “Green Guides.” The letters request that the recipients advise on what steps they are taking to bring their marketing into compliance. The agency is not disclosing the names of the companies that received the warning letters.

According to the Green Guides, unqualified general environmental benefit claims and environmental certificates or seals are likely to convey a wide range of meanings to consumers; i.e., consumers may see a picture of a leaf or the word “green” and assume that means the product is made of recycled materials or manufactured with renewable energy, even if those claims are nowhere to be found. Thus, the Guides caution marketers against using unqualified general environmental benefit claims – like “eco-friendly” – or environmental seals that do not convey “the basis for the certification.”

According to the warning letters, the environmental certification logos at issue do not convey the basis for the certification and are not accompanied by “clear and prominent qualifying language that limits the claim to a specific benefit.” Furthermore, the FTC cites their “.com Disclosures” guidance in noting that such a logo on a company’s website is “not likely an effective hyperlink label leading to the necessary disclosures.”

In its Business Blog, the FTC has a post on “Performing seals” which discusses the matter and advises on the following “key principles” about the use of environmental certifications and seals of approval:

  • Without careful qualification, general environmental benefit claims pose a risk of deception. Under the FTC Act, deception can occur inadvertently if the marketer does not have substantiation for consumers’ interpretations of claims. For example, if a product conveys an unqualified “eco-friendly” claim, and a consumer interprets that to mean that the product is carbon neutral and non-toxic, then the product maker may be on the hook for deception unless it has evidence to prove that the product is, in fact, carbon neutral and non-toxic.
  • Certifications and seals that don’t explain the reason for the thumbs-up may convey broad claims that can’t be substantiated. BecGreen Certification Examples - Good and Badause it is unlikely that companies can substantiate the vast array of claims that consumers can potentially interpret from an unqualified environmental certification seal, the FTC urges against using “seals that do not convey the basis for the certification.” The FTC’s blog post also includes a helpful visual illustrating good and bad examples of using an environmental certification seal (at right):
  • Companies can take steps to reduce the risk of deception. As discussed in the Green Guides, visuals like certification logos should be accompanied with “clear and prominent qualifying language that clearly conveys that the certification or seal refers only to specific and limited benefits.” In the “Good Example” of an environmental certification seal, for example, the words “Biodegradable,” “Recyclable,” and “Compostable,” are clearly displayed next to the certification logo.
  • Logos themselves aren’t likely to be effective hyperlinks. Companies should not assume that readers will click on the logo image, and instead include explanatory information in large, easy-to-understand text, right next to the logo. In cases where not all attributes can be listed next to the seal, companies should display sufficient information upfront to explain why readers should click the clear and prominently placed link.
  • Both the certifier and the advertiser have responsibilities under Section 5 of the FTC Act. In its letters to certifiers, the FTC notes that the certifiers’ websites do not appear to provide instructions to marketers on using qualifying language.
  • The FTC has resources for companies that want to keep green claims clean. Here, the FTC refers to the Green Guides as well as its Statement of Basis and Purpose [PDF] for more detail. More resources are available on the FTC’s Environmental Marketing

The FTC has not determined whether the letter recipients’ claims violate the law and is not taking any law enforcement actions at this time.

California releases draft Alternatives Analysis guidance under Safer Consumer Products program.

Today, California’s Department of Toxic Substances Control (DTSC) released the first part of draft guidance on conducting Alternatives Analysis (AA) under the state’s Safer Consumer Products (SCP) program.

The Draft Stage 1 Alternatives Analysis Guide (AA Guide) covers the first of the two stages of the AA process, which entails an initial screening of alternatives and preliminary analysis. During Stage 1, “the responsible entity identifies the goal, scope, legal, functional, and performance requirements of the Priority Product and the Chemical of Concern, and uses this information to identify an array of alternatives to consider.” At the end of Stage 1, the analysis findings, work plan, and implementation schedule are documented in a Preliminary AA Report which is submitted to DTSC.

DTSC reports that a draft guide for Stage 2 will be released in the first quarter of 2016. In Stage 2, the responsible entity follows the Work Plan approved in Stage 1 and conducts an in-depth analysis considering impacts such as life cycle and cost. This process culminates in selecting an alternative and making a regulatory response recommendation.

The Draft Stage 1 AA Guide also notes that companies have alternative compliance options to the AA process if an AA or similar comparative analysis has already been completed, or if the company prefers a different AA approach. After demonstrating to DTSC that the alternate approach is “adequate for evaluating the Priority Product and the alternatives” and “sufficiently equivalent to the AA process described in the regulations,” responsible entities may choose instead to conduct an Abridged AA or Alternate Process AA, or use a previously completed AA.

The draft AA Guide discusses in detail the following topics:

  • Product Requirements and Alternatives – including product function and performance, legal requirements, and the role of the Chemical of Concern.
  • Relevant Factors – how to use an iterative process to identify “relevant factors” used throughout the AA process to characterize, evaluate, and compare impacts of the Priority Product and its alternatives.
  • Impact Assessments – approaches, tools, and information sources a responsible entity may use to conduct analyses throughout the AA process.
  • Screening Alternatives – considerations for and approach to screening, assessing tradeoffs, and conducting limited screens.

DTSC will hold two webinars to discuss the Draft Stage 1 Alternatives Analysis Guide, on October 7 and October 21. The comment period on the Guide runs through October 23, 2015.

EPA issues final Significant New Use Rule for HBCD in textiles.

EPA has released the prepublication version [PDF] of its final Significant New Use Rule (SNUR) for the brominated flame retardants hexabromocyclododecane or 1,2,5,6,9,10-hexabromocyclododecane (HBCD). HBCD is persistent, bioaccumulative, toxic, and poses potential human health concerns, including reproductive and developmental effects. This Final Rule designates the use of HBCD in consumer textiles as a significant new use which must be reported to EPA at least 90 days in advance. Under this SNUR, consumer textiles include “bolts of cloth and draperies, as well as textiles that are part of household furniture and mattresses.” The Rule does not apply to the use of HBCD in motor vehicles or other current uses, such as non-consumer textiles, like firefighters’ suits, and building insulation.

The SNUR partially revokes the usual articles exemption, 40 CFR 721.45(f), meaning that the rule’s notification requirements apply to importers and processors of HBCD as part of a “textile article,” like an upholstered chair. Notably, the SNUR applies to all importers and processors of HBCD as part of a textile article, regardless of whether it is a “consumer textile.” EPA’s rationale is that “if the inapplicability of the exemption was limited to consumer textiles, undifferentiated textiles (e.g., the type of textiles that could be for a consumer use or a non-consumer use), could be imported or processed and distributed in commerce for consumer use without notification to the Agency.”

The SNUR subjects exporters of HBCD in consumer textiles to the export notification requirements of Section 12(b) of the Toxic Substances Control Act (TSCA). However, EPA declined to require § 13 import certification for HBCD as part of articles.

EPA has made two changes to this SNUR since it was first proposed in 2012. First, the agency narrowed the inapplicability of the articles exemption to apply only to importers and processors of HBCD as part of a textile article. Thus, importers and processors of HBCD in non-textile articles are not subject to the SNUR. In addition, EPA made minor clarifying changes to its definition of “consumer textile,” which is now defined as follows:

Consumer textile means any cloth, fabric, or other item produced during a milling process for textiles (including spinning, weaving, knitting, felting, or finishing), that is sold or made available either as a product or as part of a product, to a private individual who uses it in or around a permanent or temporary household or residence, during recreation, or for any personal use or enjoyment. Consumer textiles can include, but are not limited to, bolts of cloth and draperies, as well as textiles that are part of upholstered household furniture and mattresses.

EPA also rejected commenters’ requests to establish a “policy framework by rule for the issuance of article SNURs.” The agency responded that a policy framework was not necessary to reach the conclusion that notification should be required for importing or processing HBCD in consumer textiles.

HBCD has recently been subject to significant scrutiny by EPA and others. Last month, EPA issued initial documents for its TSCA Work Plan risk assessment of HBCD in foam and polystyrene products. In 2014, EPA’s Design for Environment (DfE) program released an Alternatives Assessment for HBCD, identifying safer alternatives in foam insulation applications. The Consumer Product Safety Commission (CPSC) has been petitioned by a coalition of environmental, health, and consumer advocates to ban certain products containing HBCD and related flame retardants. Outside the U.S., HBCD was added as a prohibited substance to the Stockholm Convention on Persistent Organic Pollutants and is being withdrawn in Europe under REACH.


EU court rules on notification requirements for REACH articles.

Under Europe’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation, notifications are required for components of complex products that meet the 0.1% threshold concentration for certain chemicals, the European Court of Justice (ECJ) has ruled. The court’s decision, issued last week, overturns guidance issued in 2011 by the European Commission and European Chemicals Agency (ECHA). Interpreting Articles 7(2) and 33 of REACH, which require disclosures when an article contains more than 0.1% by weight of Substances of Very High Concern (SVHC), the ECJ found that “there is no need to draw a distinction …between the situation of articles incorporated as a component of a complex product and that of articles present in an isolated manner.” Thus, notification duties apply based on the concentration of SVHCs in component articles that make up a complex product, rather than the complex product’s total weight.

According to the court, a “complex product” is “made up of a number of manufactured objects meeting the criteria laid down in Article 3(3),” which defines an “article” as “an object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition.” Further,

It is therefore only if the production of an object using a combination of more than one article gives that object a special shape, surface or design which is more decisive for its function than its chemical composition that that object may be classified as an article. Accordingly, unlike a simple assembly process, that production process must alter the shape, surface or design of the articles used as components.

Article 7(2) requires producers and importers of articles to notify ECHA if an SVHC is present at a level greater than 0.1% and totals over one tonne per year. Under Article 33, suppliers must inform recipients of articles containing SVHCs at this level, and provide similar information in response to consumer inquiries within 45 days.

The court ruled that a “producer’s duty to notify covers only those articles which the producer itself has made or assembled,” while third-party assemblers must make notifications for complex products it assembles. Importers are subject to notification duties for articles that comprise components of complex products. Suppliers’ notification duties, which include providing the name of the SVHC, apply “to all operators along the supply chain.”

The ECJ’s decision affirms the position of France, Belgium, Denmark, Germany, Austria, Sweden, and Norway, and is in line with the opinion published in February by an ECJ Advocate General, a legal advisor to the court. According to Chemical Watch, ECHA said it will begin the process of revising its guidance in light of the ECJ’s ruling.

Alternatives Assessments for flame retardants in flexible polyurethane foam and printed circuit boards finalized.

Yesterday, EPA released two final Alternatives Assessment reports, for flame retardants used in flexible polyurethane foam and printed circuit boards, as well as a technical correction to an alternatives assessment report on bisphenol A (BPA) in thermal paper. These reports were developed under the agency’s Design for Environment (DfE) program to characterize chemical hazards and identify safer chemicals, and continue EPA’s scrutiny of flame retardant chemicals.

The final Alternatives Assessment for flame retardants used in flexible polyurethane foam finalizes the draft update, released in June 2014, to a 2005 report on the flame retardant pentabromodiphenyl ether (pentaBDE). PentaBDE was voluntarily phased out by industry in the U.S. in 2004, and is subject to a proposed Significant New Use Rule and section 4 test rule under the Toxic Substances Control Act (TSCA) as part of the EPA’s Polybrominated Diphenyl Ethers (PBDEs) Action Plan. The final report evaluates 19 alternatives, including one non-proprietary mixture and two proprietary mixtures, and covers all upholstered consumer products containing flexible polyurethane foam, including car seats and nursing pillows. In addition, EPA released a document responding to public comments to the draft report [PDF].

EPA also finalized its Alternatives Assessment report for flame retardants in printed circuit boards used in electronic products, like computers and cell phones, and released a response to comments on the 2014 draft report [PDF]. The Alternatives Assessment was published in draft form in December 2014 as an update to a draft first released in 2008. As in the 2014 draft, the final Alternatives Assessment focuses on alternatives to tetrabromobisphenol-A (TBBPA), a commonly used halogenated flame retardant which is also the subject of a recently released TSCA Work Plan Problem Formulation and Initial Assessment. Based on a confidential study and comment submitted following the release of the 2014 draft report, the final Alternatives Assessment changed the skin sensitization designation for magnesium hydroxide from Moderate to Low. Responding to another comment, EPA elaborated on performance testing of halogen-free flame-retardant printed circuit boards, which reportedly “found that the eight halogen-free flame retardant laminates tested generally outperformed the traditional… laminate control.”

The technical correction revises a final Alternatives Assessment report for BPA in thermal paper originally released in January 2014. BPA, a high production volume (HPV) chemical, is commonly used as a developer in thermal paper, like cash register receipts. The correction changes the developmental toxicity designation of one alternative, Pergafast 201, from High to Moderate. The change is based on further analysis of new data submitted in response to the draft report.

EPA releases initial TSCA Work Plan assessments of four flame retardants.

Last week, EPA released preliminary assessment documents for four structurally similar flame retardant chemical clusters. These documents represent the first step in the Toxic Substances Control Act (TSCA) Work Plan Chemical assessment process for these substances, which were all on the Work Plan list. The TSCA Work Plan is the agency’s program to evaluate potential risks of existing chemicals, first introduced in 2012 and updated in 2014. The notice of the availability of these assessments will be published in the Federal Register on August 18.

EPA released Problem Formulations and Initial Assessments for three flame retardant chemical clusters:

  • Tetrabromobisphenol A (TBBPA), also known as Brominated Bisphenol A – used in plastics and printed circuit boards;
  • Chlorinated phosphate esters – used in furniture foams and textiles; and
  • Cyclic aliphatic bromides/hexabromocyclododecane (HBCD) – used in expanded polystyrene foams and polystyrene foam products.

The Problem Formulations and Initial Assessments discuss likely exposure and hazard scenarios to workers and consumers, based on current production, use, and exposure information. These assessments aim to identify scenarios where further risk analysis may be necessary. In the case of these three flame retardants, EPA will conduct assessments of risk to human health (workers and consumers) and the environment. EPA will accept public comment on these Problem Formulations and Initial Assessments for 60 days.

In addition, EPA released a Data Needs Assessment for the Brominated Phthalates (TBB and TBPH) cluster of flame retardants used in polyurethane foam products. After reviewing previous assessments of this cluster, EPA identified critical gaps in existing data on toxicity, exposure, and commercial mixtures. The Data Needs Assessment for brominated phthalates is meant to guide the collection of additional data and information and provide stakeholders and the public with the opportunity to submit data or information that may fill the identified gaps. As information is identified or submitted, the agency will “continue to evaluate the adequacy of the database to conduct a risk assessment that can inform decision making.” Public comment on the Data Needs Assessment will be accepted for 120 days.

EPA to hold training webinars on TSCA section 5 e-PMN electronic reporting system.

Today, U.S. EPA announced a series of webinars to assist submitters with the agency’s new web-based system for Toxic Substances Control Act (TSCA) Section 5 submissions. The new electronic reporting system, finalized by rule last month, applies to premanufacture notices (PMNs) and certain other § 5 notices and support documents. The three webinars will walk submitters through the process of registering with EPA’s Central Data Exchange (CDX) and using the new, cloud-based e-PMN software to complete PMNs and other submissions. The webinars are scheduled for August 26, September 16, and September 30; audio recordings and slides will be posted online for those unable to attend.

OSHA releases Hazard Communication Standard inspection procedures.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has released a new Directive outlining the changes in enforcement caused by the modification of the Hazard Communication Standard (HCS 2012) to harmonize with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The new Directive, titled Inspection Procedures for the Hazard Communication Standard (HCS 2012), describes how to determine if a violation has occurred under the revised standard as well as how it will be enforced both during its transition period and after full implementation.

The Inspection Procedures note that HCS 2012 is based on GHS Revision 3 (2009), not the more recent Revisions 4 or 5 issued by the UN in 2011 and 2013, respectively. The Directive notes that using a more recent version of GHS may result in noncompliance with HCS 2012 “if it contradicts or casts doubt on OSHA required information.” Notably, OSHA requires that precautionary and hazard statements incorporated from GHS be changed to mandatory, e.g., “should” must be replaced with “shall.”

The Directive provides significant discussion on hazard classification under the revised standard. Classification must be based on criteria specific to each hazard class, and evaluations must “consider all available data on the hazards.” Other considerations include quality and quantity of data and positive and negative results in a single weight-of-evidence determination. Detailed evaluation procedures are included in the Directive’s appendices. In terms of inspection guidelines, the Directive notes that “[t]he adequacy of a company’s hazard classification should be assessed primarily by examining the outcome of that classification.”

The HCS 2012 labeling and SDS requirements went into effect on June 1, 2015 (except for distributors, for whom labeling requirements do not apply until December 1, 2015). However, where a company has “exercised ‘reasonable diligence’ and ‘good faith’ to obtain HCS 2012-compliant SDSs from upstream suppliers but have not received them, they will be allowed limited continued use of HCS 1994-compliant MSDSs and labels.”

Canada imposes new reporting requirements for nanoscale substances.

Canada’s Minister of the Environment is requiring manufacturers and importers of certain nanoscale substances to report information for “the development of a list of nanomaterials in commerce in Canada and subsequent prioritization activities for these substances, which may include risk assessment and risk management activities.”

A notice published in the Canada Gazette on July 25 lists 206 substances by CAS number. A listed substance is reportable if it “has a size of between 1 and 100 nanometres in at least one external dimension, or internal or surface structure.” The Minister of Environment intends to use the reported data to assess whether the listed substances “are toxic or are capable of becoming toxic,” or to assess whether and how to control the substances.

The reporting requirements apply to any person who manufactured or imported more than 100 kg of a listed nanoscale substance in calendar year 2014, including imports of substances in mixtures and products, at any concentration. However, the notice does not apply to listed nanoscale substances that are in transit through Canada, are naturally occurring, were incidentally produced, or are covered by various other laws, such as the Fertilizers Act or Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.

Reportable information includes total quantities manufactured or imported, end uses (commercial, consumer, or use by children under 14 years of age) and studies or data on physical-chemical properties, bioaccumulation, persistence, toxicity, metabolism, degradation, and release or disposal from the final mixture or product. The reporting deadline is February 23, 2016.

EPA issues new electronic reporting rule for TSCA section 5.

Today, EPA released a pre-publication version of a new rule for electronic reporting under section 5 of the Toxic Substances Control Act (TSCA). The action, which comes in the form of a Direct Final Rule, amends the regulations governing the electronic submission of premanufacture notices (PMNs), other TSCA § 5 notices, and related documents to EPA. The rule provides for various new procedures and requirements for registration, reporting and submission, including new ways to access and complete the electronic-PMNs (e-PMNs), changes to the registration process for the Central Data Exchange (CDX), and requiring all “bona fide intents to manufacture” notices to be submitted electronically. The Agency’s intention in passing this rule is “to further streamline and reduce the administrative costs and burdens of TSCA section 5 notifications for both industry and the EPA.”

The Agency previously issued a Final Rule in January 2010 requiring the use of e-PMN reporting software for the submission of PMNs, other TSCA § 5 notices, and related documents through CDX. The new rule mandates the use of a new version of the e-PMN software, which is cloud-based. Firewall and file submission size limitations from the old version of the software have been eliminated.

Other minor changes to the regulations include:

  • Corrections of regulatory cross- references in 40 CFR parts 720 and 721;
  • Standardizes use of “manufacture” and similar language in parts 720, 721, and 725; and
  • Specifies electronic reporting procedures for the notification of new manufacturing sites pursuant to 40 CFR 723.50(j)(6)(ii).

After this rule, the only submissions related to TSCA § 5 that cannot be handled via e-PMN are:

  • Certain notices, like polymer exemption annual reports;
  • Certain support documents, including § 5(e) consent orders;
  • Certain communications, such as pre-notice communications and TSCA Inventory correspondence.

The Agency “may consider offering electronic reporting of these and other submissions in the future.”

The rule is scheduled to be published on Monday, July 20, and will become effective 180 days thereafter, unless EPA receives adverse comment within 30 days of the rule’s publication date. EPA will begin accepting submissions via the new e-PMN system beginning 45 days after the rule’s publication.