California Governor Vetoes Three Bills Restricting PFAS in Consumer Products

On October 8, 2023, California Governor Gavin Newsom announced that he had vetoed three bills passed by California’s state legislature designed to restrict PFAS in certain consumer products. The three bills vetoed by Newsom are as follows:

  • AB 727, which would have banned the manufacture and sale of cleaning products containing intentionally added PFAS or PFAS at or above a certain concentration beginning in 2026. The concentration threshold would have decreased over time to 10 ppm in 2028.  The bill also would have banned the manufacture and sale of floor sealers and floor finishers containing intentionally added PFAS or PFAS at or above 10 ppm beginning in 2028.
  • AB 246, which would have banned the manufacture and sale of menstrual products containing intentionally added PFAS or PFAS at or above 10 ppm beginning in 2025.
  • AB 1423, which would have banned the manufacture, sale, or purchase of artificial turf containing intentionally added PFAS or PFAS at or above 20 ppm beginning in 2026.

In his veto messages for each of the three bills, Newsom provided an identical rationale for his decision.  Newsom wrote that he “strongly support[s] the author’s intent and [has] signed similar legislation in the past” but is concerned that the bill does not identify a regulatory agency to determine or enforce compliance with the proposed statute. According to Newsom, similar legislation that has been enacted without regulatory oversight has been challenging to implement due to inconsistent interpretations and confusion among manufacturers on how to comply. Newsom concluded each message by stating that he is directing the Department of Toxic Substances Control to work with the bill’s author and the legislature to consider other approaches to PFAS regulation.

EPA Releases Proposed Rule on Regulatory Requirements for New HAP Additions

Last month, EPA published a proposed rule that would amend the National Emission Standards for Hazardous Air Pollutants (NESHAP) to facilitate the addition of pollutants to the list of Hazardous Air Pollutants (HAP) under the Clean Air Act (CAA).  The proposed rule seeks to address applicability and compliance issues that EPA identified following the Agency’s 2022 decision to add 1-bromopropane (“1-BP”) to the list of HAP, which was the first addition to the HAP list since its inception in 1990.  Comments on the proposed rule are due on November 13, 2023.

The proposed rule makes the following clarifications:

  • EPA proposes language clarifying that a new HAP would not be regulated under NESHAP promulgated before the effective date of the listing.
  • EPA states that beginning on the effective date of the listing, a new HAP must be included in calculating a facility’s actual emissions, potential emissions, and whether a facility is considered an area source or a major source under CAA. Any facility that becomes a major source under CAA section 112 solely due to the addition of a new HAP, known as a major source due to listing (“MSDL”) facility, will need to evaluate whether any major source NESHAP applies to its operations.  EPA proposes that each MSDL facility be considered an “existing source” under CAA section 112, a designation that typically results in less stringent NESHAP emissions standards.  EPA also proposes that MSDL facilities would not be subject to the original NESHAP compliance schedules, which in many cases would require instantaneous compliance, and instead proposes that these facilities be subject to new deadlines based on the nature of the NESHAP emissions limitations or requirements.
  • When a facility triggers one or more major source NESHAP, it is required to submit an initial notification under each newly applicable NESHAP. EPA proposes that MSDL facilities include a statement that the facility is a major source due to HAP listing in their notification.

The proposed rule does not include any changes to the CAA Title V program.  MSDL facilities that do not elect to reduce their emissions to non-major levels would be required to apply for a Title V operating permit.  Though the proposed rule focuses on the immediate compliance obligations following the addition of a new HAP, EPA states that “future actions within NESHAP will address rule-specific issues,” such as identifying emissions sources and promulgating standards for new HAP.

1-BP was added to the Toxics Release Inventory list of reportable chemicals in 2015.  According to EPA’s website, the Agency “is now in the process of writing a proposed rule to take action to regulate 1-BP” following EPA’s 2022 determination that the chemical poses an unreasonable risk to human health.

EPA Proposes Revisions to the Air Emissions Reporting Requirements

On August 9, 2023, EPA released a lengthy proposed rule revising the Air Emissions Reporting Requirements (AERR), which requires state, local, and some tribal agencies (“States”) to collect and report data on air pollutant emissions to EPA.

Perhaps most importantly, the proposed rule would require the reporting of point source emissions of Hazardous Air Pollutants (HAP), as enumerated in Clean Air Act section 112(b) and amended in 40 CFR 63 Subpart C.  EPA is proposing to expand the definition of “point source” accordingly to include certain emitters of HAP pollutants.  Owners/operators of point sources would be required to report HAP data directly to EPA unless a State chooses to report these emissions on behalf of owners/operators of point sources within the State.

In addition to the reporting of HAP, EPA proposes that:

  • Owners/operators of point sources report performance test results and performance evaluations that meet certain criteria;
  • States report data on “small generating units” that operate at point sources and meet specific criteria, and
  • Point source reporting should be done for the same sources every year, eliminating the current triennial approach that requires more facilities to be reported every third year by making the triennial year thresholds permanent, among a myriad of other changes.

The comment period for the proposed rule was extended until November 17, 2023.  Though the proposed changes have varying implementation dates, most importantly, most facilities would be required to begin submitting HAP data for the 2026 inventory year.

EPA Releases Draft Supplement for 1,4-Dioxane

In July 2023, EPA announced the release of a draft supplement to the Risk Evaluation for 1,4-dioxane for public comment and peer review.  1,4-dioxane is solvent used to manufacture other chemicals such as adhesives and sealants.  It is also used as a processing aid and laboratory chemical. In addition, some manufacturing processes, such as the process used for making commercial and consumer dish soaps, result in the chemical being present as a byproduct.

The draft supplement focuses on air and water exposure pathways that were not included in the 2020 Risk Evaluation.  The 2020 Risk Evaluation focused on health risks to workers, consumers, and the general public, but not from drinking water, the air, or exposure where 1,4-dioxane is present as a byproduct.  The omission was identified by the Scientific Advisory Committee on Chemicals (SACC) as an oversight.  The SACC informed EPA that failure to assess the risks posed to the general population from exposure to the chemical may present a risk to human health – with an emphasis on drinking water as an exposure pathway.

The draft supplement identified cancer risk estimates higher than 1 in 10,000 for 1,4-dioxane present as a byproduct and higher than 1 in 1 million for general population exposure scenarios associated with 1,4-dioxane in drinking water sourced downstream of release sites and in air within 1 km of releasing facilities.

The draft supplement did note that the risk estimates include inherent uncertainties and the overall confidence in specific risk estimates fluctuates.  However, the document also stated that the information is beneficial in helping the Agency make a determination on whether the chemical poses an unreasonable risk to people with occupational exposure, through sources of drinking water, and breathing air near release sites.

EPA Settles with Kyocera After Self-Disclosure of TSCA Violations

On September 5, 2023, EPA signed a consent agreement with Kyocera International, Inc. (“Kyocera”) over three alleged violations of the Toxic Substances Control Act (TSCA). Kyocera’s civil penalty was reduced to $105,937 because of EPA’s audit policy, which rewards companies that “voluntarily discover, promptly disclose and expeditiously correct” violations with reduced fines.

The alleged violations, which pertain to six unnamed chemicals (Chemicals A, B, C, D, E, and F), are as follows:

  1. Importation of Chemical A at least 12 times, Chemical B at least 21 times, and Chemical C at least 18 times without first filing a premanufacture notice (PMN) or an exemption to PMN requirements, in violation of TSCA section 5(a)(1);
  2. Failure to comply with recordkeeping requirements for Chemical D and E’s polymer exemptions to PMN requirements, in violation of TSCA section 5(a)(1); and
  3. Importation of Chemical A at least 12 times, Chemical B at least 21 times, and Chemical C at least 18 times without submission of proper certifications prior to the importation, and importation of Chemical F three times without providing a positive TSCA certification statement for each import, in violation of TSCA section 13(a)(1)(B).

The electronics manufacturer corrected the alleged violations by ceasing importation of Chemicals A, B, C, and D, submitting low-volume exemptions to PMN requirements for Chemicals B and C (which were granted by the Agency), and complying with the polymer exemption requirements for Chemical D. Under the terms of the settlement, EPA gave Kyocera permission to release its self-imposed quarantined stocks of Chemicals B, C, and D.

Kyocera self-disclosed the violations on June 23, 2021, with supplemental information provided in March 2023. The company disclosure and subsequent corrective action satisfied all of EPA’s audit policy conditions except the requirement that the violations be uncovered by “systematic discovery” and was therefore eligible for a 75% reduction in the gravity-based portion of the civil penalty.

The consent decree comes after a June 30, 2022, EPA Inspector General report which found that eDisclosure, EPA’s violation self-disclosure system, “does not have adequate internal controls in place to ensure that the EPA’s screening process is effective and that significant concerns . . . are identified and addressed.” EPA agreed with all four of the report’s recommendations and proposed corrective actions, including the development of national guidance and eDisclosure-specific training for EPA staff who monitor eDisclosure submissions.

CPSC Publishes Request for Information Regarding PFAS in Consumer Products

On September 20, 2023, the Consumer Product Safety Commission (CPSC) published a request for information (RFI) in the Federal Register for information on PFAS in consumer products. The RFI requests information from all stakeholders, including “consumers, manufacturers and importers, government agencies, non-governmental organizations, and researchers.”

The requested information falls into three categories:

  1. Use or potential use of PFAS in consumer products, including information about the definition of PFAS, identification of specific PFAS potentially used or present in consumer products, and information about which PFAS or consumer products CPSC should prioritize in future assessments, among other information;
  2. Potential human exposures to PFAS associated with consumer products use, including information about the potential for exposure and risk from the presence of PFAS in consumer products, among other information; and
  3. Potential adverse human health effects informed by toxicological data, including reports that could inform whether individual PFAS or categories of PFAS have the potential for adverse human health effects, and information on additional data sources that CPSC should consider.

The Federal Register notice also announced the availability of a contract report that CPSC commissioned to characterize the use of PFAS in consumer products, identify PFAS regulations and restrictions, and summarize recent hazard, exposure, and risk assessments on PFAS. The contract report ultimately identified 863 PFAS with reported use or detection in consumer products. The RFI instructs reporting entities to consider information already available to CPSC in the contract report when reporting information.

CPSC does not explicitly state what it plans to do with the collected data in the RFI but states that the contract report “identif[ies] possible next steps.” The next steps identified by the contract report include research (such as developing a consensus on the definition of PFAS), new regulations, and consumer awareness.

The RFI comes after Minnesota, Maine, and other states passed regulations limiting the use of PFAS in consumer products. CPSC will accept the requested information through November 20, 2023.

EPA Proposes SNURs for Flame Retardants

EPA has proposed significant new use rules (SNURs) for three flame retardants under the Toxic Substances Control Act (TSCA). The three flame retardants are tris(2-chloroethyl) phosphate (TCEP), tetrabromobisphenol A (TBBPA), and triphenyl phosphate (TPP).  All three substances are currently undergoing TSCA risk evaluations.  The proposed significant new uses are manufacture (including import) or processing for any use, except for those uses being considered in the risk evaluations.  In the Federal Register notice, EPA explained that significant new uses would encompass the following categories:

  • Manufacture and processing for uses that have ceased;
  • Manufacture and processing for uses that have not yet ceased but for which all manufacture and processing has ceased; and
  • Manufacture and processing for uses for which EPA has no information demonstrating that the use has previously commenced in the United States.

The Agency sought public comment on its description of the significant new uses for the chemicals identified, including specific documentation of ongoing uses not identified by the Agency in the risk evaluation scope documents.

EPA noted that “The issuance of a SNUR is not a risk determination itself, only a notification requirement for ‘‘significant new uses,’’ so that the Agency has the opportunity to review the [Significant New Use Notification] for the significant new use and make a TSCA section 5(a)(3) risk determination.”  In other words, “Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacture (including import) or processing for the significant new use can commence.”

In its discussion of the significant new use determination, EPA explained that the Agency considered information about the toxicity or expected toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in TSCA section 5(a)(2):

  • The projected volume of manufacturing and processing of a chemical substance,
  • The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance,
  • The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance and
  • The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

According to the Federal Register Notice, current uses of TCEP are as follows:  TCEP is imported into the United States and processed for commercial use in paints and coatings, for industrial or commercial use in polymers for use in aerospace equipment and products, and for commercial use as a laboratory chemical.

EPA found that TBBPA is currently manufactured (including imported) in the United States. It is processed as a reactant or intermediate to create other flame retardants; incorporated into formulation, mixture, or reaction products; and incorporated into articles. The Agency noted that the predominant uses for TBBPA are as a reactive flame retardant in electrical and electronic products and as an additive flame retardant in electrical and electronic products. In addition, epoxy resin containing TBBPA can be used in adhesives, laminate for aviation and automobile interiors and building/ construction materials.

The Agency reported that TPP is manufactured (including imported) in the United States.  It is processed as a reactant; incorporated into formulation, mixture, or reaction products; and incorporated into articles.  Commercial uses include in plastic and rubber products and in paints and coatings. The chemical is also used in lubricants and greases.  In addition, consumer uses were reported in foam seating and bedding products.

Comments can be viewed in docket EPA–HQ–OPPT–2023–0012 at regulations.gov.

Environmental Group Petitions for Review of EPA’s New Confidential Business Information Rule

Environmental Defense Fund (“EDF”) has filed a petition in the US Court of Appeals for the District of Columbia requesting a review of EPA’s recently finalized rule Confidential Business Information Claims Under the Toxic Substances Control Act (TSCA).  Petitioner’s Statement of Issues was filed in August.  EDF raises the question of whether EPA’s rule was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law because it …

 

  • Would allow confidential business information (“CBI”) claims for types of information TSCA makes categorically ineligible for CBI protection;
  • Would not require substantiation or EPA review of a CBI claim that was asserted before the chemical’s commercialization, for information that identifies the specific chemical identity. once the chemical is commercialized;
  • Unlawfully adopts a regulatory definition of “health and safety study” that is narrower than the TSCA definition, denying TSCA-mandated public access to important information on chemicals;
  • Give the Agency unlawfully broad discretion through its regulations where TSCA imposes a duty upon the Agency; and
  • Reduces the transparency previously required under EPA’s CBI review procedures without adequate justification.

 

EDF has not yet filed a memorandum in support of its petition.

Clothing Accessories Companies Penalized for False Made in USA Claims

In August 2023, the Federal Trade Commission (FTC) finalized a complaint and order against Chaucer Accessories, Inc. and two other companies owned by Thomas P. Bates for falsely labeling belts, shoes, and other products as “Made in the USA” (MUSA). The order includes a monetary judgment of $191,481.

According to FTC, the New England-based companies regularly claimed that certain products were MUSA, even though these products were wholly or largely imported. In other instances, the companies claimed that certain belts were “Made in the USA from Global Materials,” when in reality, the companies merely affixed buckles to imported belt straps. FTC alleged three violations of section 5(a) of the Federal Trade Commission Act: one violation for the false MUSA claims, one violation for the false MUSA from global materials claim, and one violation for distributing the false claims to resellers for their use in the resale of the products.

In addition to the monetary judgment, the order places restrictions on the companies and Bates on making unqualified MUSA claims, prohibits them from misrepresenting their products’ country of origin or providing others the means to make misrepresentations and imposes requirements for qualified MUSA claims and assembly claims. The companies must also notify affected customers of the violations and provide FTC with sufficient customer information for the Commission to administer customer redress.

Colgate Faces False Advertisement Suit Over Recyclable Claims

A class action lawsuit has been filed in a California federal court against the Colgate-Palmolive Company (“Colgate”), alleging the company falsely advertises its Colgate and Tom’s of Maine branded toothpaste tubes as recyclable. The complaint alleges that Colgate’s claims are a violation of the Federal Trade Commission’s Green Guides, which prohibits a product from being called recyclable “unless there is an established recycling program, municipal or private, through which the product will be converted into, or used in, another product or package.”

The complaint also alleges California Business and Professions Code violations, which make it “unlawful for any person to make untruthful, deceptive, or misleading environmental marketing claims.”

A number of Colgate branded products, including but not limited to its popular products Colgate MaxFresh Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive Toothpaste, feature the three-arrow recycling symbol atop the language “Recyclable Tube.” The company’s Tom’s of Maine product packaging advertises its toothpaste tubes as “The First of its Kind Recyclable Tube.” This language is used on over ten of its toothpaste products. None of the packaging of these products, Colgate or Tom’s of Maine, includes language that limits or qualifies the recyclability claims.

Additional recyclability claims are made on the brands’ websites. The Tom’s of Maine website features the following claims, which the Plaintiff alleges are misrepresentations:

  • “Recyclable Tube”
  • “Recycle Me!”
  • “Buy Smart – By reaching for this toothpaste tube you’re actively making a difference.”
  • “Recycle It – Our recyclable tube is not meant for a landfill – it gets turned into useful products.”
  • “As the leaders in the oral care industry, we wanted to create a recyclable alternative.”

While the toothpaste tubes are theoretically recyclable, a consultant at the Association of Plastic Recyclers stated, “[f]or many facilities in the US, the company’s new recyclable tubes are indistinguishable from those made from more common plastics, prompting recyclers to reject them. The old tubes could cause contamination if consumers put them in the recycling bin, so it’s easier for recycling facilities to reject toothpaste tubes across the board.”

In support of its argument, the complaint cites a recent Bloomberg article discussing the accuracy of Colgate’s claims with two solid waste management companies operating in California. (The two companies, Waste Management, Inc. and Republic Services, account for more than 40 percent of recycling services provided to consumers in California and about 25 percent of the recycling services on a national scale.) The companies highlighted that toothpaste tubes “are not in its list of acceptable items” and that there is serious concern about contamination from leftover toothpaste that remains in the tube.

According to the complaint, Colgate is fully aware that its products end up in landfills or are incinerated because recycling facilities do not accept its products. Colgate has even gone so far as to release a video on its website stating as much and explaining that the company is “continu[ing] the work beyond technically recyclable toward acceptance of tubes in recycling centers.” If recycling centers do not accept toothpaste tubes, their recyclability is irrelevant, and labeling and advertising their products as recyclable is false, misleading, and deceptive to consumers and members of the public seeking to make environmentally conscious purchasing decisions.

Plaintiffs seek an injunction on the sale of these products until such time the labeling and advertising language can be modified to remove recyclability language or alternatively to include a qualified claim that accurately states the availability of recycling programs. To be in compliance with the Green Guides’ environmental marketing requirements, a company is only permitted to make unqualified recyclable claims “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” The Guides further clarify a substantial majority to mean at least 60 percent, and that “[w]hen recycling facilities are available to less than a substantial majority of consumers or communities where the item is sold, marketers should qualify all recyclable claims.”

Additionally, Plaintiffs are seeking compensatory and statutory damages.