Washington State has taken its first steps towards implementing the nation’s strongest state chemicals law. This month, the Department of Ecology (Ecology) announced certain chemical-product combinations that it is studying for potential priority designation. Any such designated combinations could be subject to future restrictions or bans. Stakeholders should take advantage of this early opportunity to provide input to Ecology.

Chemical-Product Combinations Ecology is Researching

Ecology is focusing its initial research on the following chemical-product combinations:

• Flame retardants: electronics, foam used in furniture, and building insulation
• Perfluoroalkyl and polyfluoroalkyl substances (PFAS): carpets and aftermarket carpet treatments
• Polychlorinated biphenyls (PCBs): printing inks
• Phthalates: vinyl flooring and cosmetic fragrances
• Phenolic compounds: laundry detergent, thermal paper, and can linings

Ecology is seeking certain information about these chemical-product combinations, including: the concentrations of the listed chemicals found in these products; human and environmental exposure potential; availability of chemical alternatives; and volumes of these products sold in Washington. PFAS substances have been widely used in carpets for stain resistance. Ecology’s focus may accelerate a move away from PFAS use in carpets.

Comments may be emailed to Ecology at [email protected]. Ecology plans to formally propose the first chemical-product combinations to be designated under the law by early 2020.  Following that proposal, Ecology will open a 60-day comment period.

Background: Safer Products for Washington Law

Scope of Products Covered

The law could impact virtually any consumer products – defined as “any item, including any component parts and packaging, sold for residential or commercial use” – that are not covered by an express exemption. Exemptions are available for inaccessible electronic components, motorized vehicles, and certain other federally-regulated products (e.g., food, drugs, and tobacco). The law could also impact the packaging of consumer products whether or not the products themselves are exempt. Before the state may restrict the use of chemicals in any consumer product or packaging, the product or packaging must be identified by Ecology as a priority product. Ecology must identify a first round of priority products by June 1, 2020. As part of its priority product selection process, Ecology may require consumer product manufacturers to disclose product or packaging composition information to the state.

Scope of Chemicals Subject to Restriction

Only chemicals designated as priority chemicals may be subject to restrictions. The law itself designates an initial list of priority chemicals:

• PFAS.
• Phthalates.
• Certain flame retardants.
• PCBs.
• Phenolic compounds.

Ecology is required to designate at least five additional priority chemicals by June 1, 2024, and every five years thereafter. In selecting priority chemicals, the agency must consider potential hazards posed by a chemical, as well as its current uses in consumer products.

Restrictions and Reporting Requirements

By June 1, 2022, and every five years thereafter, Ecology must consider regulatory actions to reduce the use of priority chemicals in priority products and packaging. These regulatory actions may include restricting or prohibiting certain uses of priority chemicals, or requiring that manufacturers disclose certain uses of priority chemicals to Ecology. In deciding whether to restrict priority chemicals, Ecology must consider existing uses of a chemical, potential exposures (including exposures to the environment, sensitive species, and subpopulations), and the availability of safer alternatives.

Beveridge & Diamond's Consumer Products industry group works with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help them identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.