Capitol Comments

California Releases Consumer Products Regulation

By Jessica Franken, Director of Government Affairs & Dawnee Giammittorio, Associate Director of Government Affairs, INDA, Association of the Nonwoven Fabrics Industry | September 12, 2012

Media renews interest in chemicals reform and furniture flammability; CBP to establish virtual port for textiles/apparel.

The California Department of Toxic Substances Control (DTSC) released the latest draft of its long-awaited Safer Consumer Products Regulations on July 27; the document is available for public comment. Part of the state’s Green Chemistry Initiative passed in 2008, the draft regulations aim to have manufacturers replace toxic chemicals used in consumer products with safer alternatives and make information about product materials more available to the public. Manufacturers, retailers and importers of consumer products should prepare now for the regulations, which close observers predict will most likely be implemented by the end of this year or the beginning of 2013. 

The proposed regulations set out a process in which DTSC would first identify chemicals of concern (COCs) and then develop a list of priority products containing those chemicals. Makers of a priority product would be required to notify DTSC and answer a series of questions about the COCs, and analyze possible alternatives. Depending on the responses, DTSC would be able to require the manufacture to reformulate products, find an alternative or ban the sale altogether. 

Although the regulations identify the product manufacturer as the party primarily responsible for satisfying the requirements, if the company fails to comply, then the burden falls to the importer, and then the California retailer—meaning every company in a supply chain is potentially touched by the regulations. 

The initial list of COCs will include approximately 1,200 chemicals, down from 3,000 in the original draft. In compiling its list, DTSC will consider similar lists of COCs developed by other states and countries (think REACH) but does not guarantee overlap with any particular list. While Debbie Raphael, director of DTSC has stated, “One goal is that California’s list should not represent disproportionate burden or stigma,” industry is anxious about monitoring yet another list of chemicals on which it must collect data, analyze and report. 

Industry representatives have also raised concerns that the regulations contain no stated threshold level for COCs and lack details about the alternatives analysis process. Earlier drafts of the regulations contained a .01% threshold level, which many claimed could not always be tested nor was scientifically defensible. Under the new version, DTSC will look to manufacturers for information on accepted levels of COCs.

This latest draft provides that the first priority products list will be published 180 days after the effective date of the regulations. To help manufacturers plan and design new products effectively, DTSC intends to issue a Priority Product Work Plan by January 2014 that identifies the product categories to be evaluated for inclusion on the priority products list during the next three years.  

In spite of accommodations made in response to industry input throughout the rulemaking, the regulations are still far-reaching and burdensome and are expected to force businesses selling products in California to make major investments in compliance. And as California is often the leader in legislation and regulations of this type, we can probably expect to see similar schemes from other states in the future.

DTSC will hold a public hearing on the proposed regulations on September 10, and will accept written comments until 5 pm on September 11, 2012. To learn more, visit: www.dtsc.ca.gov/SCPRegulations.cfm.

Media Coverage Spurs Debate of Chemicals Reform & Furniture Flammability

A series of articles in the May 2012 Chicago Tribune that described the prevalence of toxic flame-retardants in American homes has renewed calls in Washington for progress on chemicals regulatory reform and a proposed flammability standard for residential upholstered furniture. The Tribune investigation alleged that aggressive lobbying and propaganda from flame retardant manufacturers over the years has led to widespread use of polybrominated diphenyl ethers (PBDEs) in upholstered furniture and other household products despite their limited effectiveness and link to cancer and a myriad of other health problems. The articles noted that weaknesses in the outdated Toxic Substances Control Act of 1976 (TSCA) have limited the U.S. Environmental Protection Agency’s (EPA) ability to address these concerns, but that efforts to revamp the chemical safety law have been stalled in Congress for years.

After the articles got the attention of Sen. Richard Durbin (D-IL) and other officials, on July 9, a bipartisan group of more than two dozen senators sent a letter to EPA administrator Lisa Jackson urging the agency to “move forward as quickly as possible with its current efforts to protect American families from the toxic effects of PBDEs.”

The letter was followed by a July 17 hearing of the Senate Appropriations Subcommittee on Financial Services and General Government in which EPA and Consumer Product Safety Commission (CPSC) representatives asked lawmakers for greater authority to regulate chemicals to be able to mitigate the risks posed by flame-retardant chemicals in the home.

Jim Jones, EPA’s acting assistant administrator for chemical safety and pollution prevention, told the subcommittee the unwieldy process under the outdated TSCA, which places too great a burden on the agency to show a chemical should be regulated and has complicated its work on brominated flame retardants, is “a clear illustration of the need for TSCA reform.”

Inez Tenenbaum, Chairwoman of the CPSC, told the subcommittee that commission testing showed no difference in flammability between flame-retardant treated and untreated upholstered chairs, while a fire barrier significantly stopped the growth of a fire. However, the commission’s ongoing efforts to finalize a 2008 proposed upholstered furniture flammability standard have been hindered in part by the Flammable Fabrics Act (FFA), which “requires that the Commission make a series of very detailed and onerous findings before a final rule can be issued…” She called upon Congress to amend the FFA to provide the commission greater flexibility and allow for expedited consideration of the proposal.

Despite the increased interest in TSCA reform and furniture flammability, it remains difficult to predict when either initiative might move forward because of the November elections and hyper-partisan gridlock in Washington. Even still, the growing call to move away from toxic flame retardants, which EPA and CPSC cannot effectively regulate, should lead to an increase in the demand for safe alternatives, presenting opportunities for companies that produce and market nonwoven barrier fabrics. 

CBP to Create Center of Excellence for Apparel, Footwear & Textiles

After operating two successful pilot programs for the pharmaceutical and electronics industries, U.S. Customs and Border Protection (CBP) says it is now planning to establish Centers of Excellence and Expertise (CEE) for seven additional industries, including one focused on Apparel, Footwear and Textiles (AFT) beginning in fiscal year 2013. 

The centers are designed to bring all of CBP’s expertise to bear on a single industry in a virtual environment by creating a single point of processing—a virtual port—for participating importers, with the aim of reducing paperwork and cargo delays, thereby leaving ports of entry to focus on high-risk shipments. According to CBP, the centers streamline trade by facilitating legitimate trade through effective risk segmentation; using account-based methods to process trade; expanding partnerships and moving more importers to trusted trader status; increasing industry-based knowledge within CBP; developing and implementing comprehensive strategies to manage risk; and enhancing enforcement and addressing industry risks.

The AFT CEE, which includes commodities such as textiles, wearing apparel, textile mill products, headwear and footwear, is still in the early stages, with the first order of business determining where to locate the staff of the virtual port. INDA members were given the opportunity to weigh in on the AFT CEE through a survey in the July Washington Alert. We will continue to keep you informed as progress is made.

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