Capitol Comments

Avoiding a Policy Wipeout

By Jessica Franken, INDAu2008Director of Government Affairs | July 5, 2011

New government proposals could add up to challenges for the nonwovens industry

Didn't make it to INDA's World of Wipes conference in Atlanta this June? Well, I may not be able to make up for any missed business opportunities, but I can share some of the highlights from my presentation. It was cleverly called "Avoiding a Policy Wipeout," and described some of the proposals coming out of Washington that could mean new challenges for us.

TSCA Reform: One of the key initiatives for wipes manufacturers to watch is the attempts to reform the nation's chemicals management regime under the Toxic Substances Control Act (TSCA).

Enacted in 1976, TSCA gave the U.S. Environmental Protection Agency the authority to require reporting, record-keeping and testing by manufacturers, importers, distributors and "processors" (downstream users) of industrial chemicals.Critics say the law is outdated and places too great a burden on the EPA. Because of these limitations, the agency has only required analysis of approximately 200 of the 84,000 substances in the U.S. and has only restricted five.These realities make TSCA reform one of the few issues that actually enjoys bipartisan support on Capitol Hill.

So what will an overhaul look like? Although it's far from a done deal, it could very well resemble the EU'sREACH (Registration, Evaluation, Authorization of Chemicals) system and impose significant new reporting and testing mandates on all downstream users. Under the various scenarios offered, manufacturers as well as processors would have to prove their chemicals are safe. Within one year of enactment, companies would be required to submit a "declaration" for all existing chemicals which would include a broad range of information including chemical identity, substance characteristics/uses, any available health/safety studies and more. Those that aren't declared would be regarded as "new" with a potential to be banned.Meanwhile, all chemicals, new and existing, would be subject to an EPA safety determination. To support their evaluation, companies would have to supply a "minimum data set" that would provide enough information for the agency to conduct a "screening level" risk assessment including data on the "characteristics, toxicological properties, exposure and use of a chemical substance."

Despite Washington's recent interest in limiting regulation, TSCA reform has an unusually diverse array of backers. Some key Capitol Hill Republicans are joining numerous industry groups in the view that federal legislation is preferable to the assortment of state laws cropping up.More importantly, recent polls show that nearly 75% of the public supports reform making it likely some sort of measure will move, if not during the current Congress, then in the not-so-distant future. If the final version resembles earlier proposals, then countless U.S. wipes manufacturers will be looking at significant additional costs, regulatory burden, public scrutiny and even potential restrictions and bans of the chemicals they've come to rely upon for their products.

Triclosan Ban? Another issue to watch is EPA's consideration of a possible prohibition of the common antimicrobial triclosan, which found in scores of products including soaps, detergents, deodorants, toothpaste, cosmetics, toys and some food service wipes.The evaluation comes in response to a petition submitted by advocacy groups Beyond Pesticides and Food & Water Watch, which asks the agency to cancel triclosan's pesticide registration. They argue it is a known endocrine disruptor, causes reproductive problems and that it is toxic to aquatic environments. EPA accepted public input until April and received hundreds of comments expressing support for a ban. Meanwhile, the U.S. Food and Drug Administration, which regulates antimicrobials used on the human body or food products, is also looking at triclosan, with findings from a safety review expected any day now.It's unclear what either agency will decide.

The good news is a lot of wipes manufacturers that were using triclosan have moved on to other functional chemicals. The not-so-good news is that the increased focus on triclosan could revive past questions about whether the use of antimicrobials in consumer products contributes to resistance in light of ongoing efforts by the Centers for Disease Control, FDA, EPA and a number of other agencies to develop a Public Health Action Plan to Combat Antimicrobial Resistance. While a recent draft of that document appears to focus on the role of human and veterinary medicines in increasing resistance and there's no explicit mention of products like wipes, it does call for expanding research into causes.

Crackdown on Greenwashing: Companies that are already making environmentally-friendly products or thinking about it should be aware of the FTC's efforts to update its "Guides for the Use of Environmental Marketing Claims," more commonly known as "Green Guides." This 200-plus page document outlines the rules for companies making legal environmental marketing claims like calling a product biodegradable, compostable, recyclable, etc. The draft revisions, which were released in October 2010, address the consumer confusion about which products are truly good for the environment.

Probably the largest wholesale change being proposed is a ban on unqualified general environmental benefit claims for instance, calling a product "green," "eco-friendly" or"mother-nature approved." Currently, this kind of advertising is allowed as long as a company can specifically prove its product is better for the environment. However, the FTC wants these kinds of claims off-limits, sincethere are no products that have all the attributes that consumers perceive, which makes them difficult—if not impossible—to substantiate. Instead, if the FTC has its way, environmental claims will have to be qualified, meaning the product or packaging will have to carry real and prominently displayed information stating the basis for any claim.

Another change to be aware of is how the FTC hopes to handle unqualified biodegradable claims. Currently, the guides require a company to prove its product will decompose within a "reasonably short period of time under customary methods of disposal."Because a "reasonably short period of time" is simply too vague,the Commission is suggesting a time limit of one year. Even companies who meet that standard will need to know how and where their products will be disposed. The FTC said it accused three companies of making false biodegradable claims in 2009 because there was no way the products in question would have been capable of breaking down in a reasonably short period of time in landfills, recycling centers and municipal incinerators.

The proposed Green Guides revisions call for a number of other changes that include updates to terms like "recyclable," and "free-of;" new limits on green seals and other eco-certifications and directions on for the use of new terms like"carbon offsets," and "made with renewable materials/energy," (for a more detailed summary see Capitol Comments, December 2010). While the October 2010 proposal was just a draft, it's probably a pretty good roadmap for the direction of the final regulation. Companies would be wise to familiarize themselves with the guides now as the FTC issignalling it intends to step up enforcement and crackdown on greenwashing. The Commission has already brought seven complaints since the start of the Obama administration, compared to zero under the Bush Administration.

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