The state of Washington has become a global player in product regulation. This month, the Department of Ecology issued a determination to restrict or require reporting on the use of five classes of chemicals in products. In some cases, the restrictions may be first-in-class – depending on how Ecology implements the determination – meaning that manufacturers may need to alter their product compositions to continue selling in Washington. Ecology must finalize the determination in a rulemaking by June 1, 2023.

On August 9, 2022, Ecology published a preliminary draft rule to implement the restrictions and reporting requirements Ecology identified in its final determination. Ecology has invited comments on a range of topics, including environmental justice, de minimis thresholds, and effective dates for material restrictions. Ecology is accepting comments on the draft rule until August 23, 2022, with another opportunity for comment after Ecology publishes the formal draft rule in December 2022.

Background

In 2019, Washington enacted the strongest state chemicals bill in the country. On five-year cycles, Ecology is empowered to take regulatory action 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.

Ecology’s recent determination is part of the first “cycle” of restrictions. A new cycle will begin next year, and off-cycle restrictions may also be on the way.

Determination and Next Steps

Ecology’s recent determination will go into effect unless the state legislature takes action to overturn or amend it. If the legislature does not act, Ecology must propose and then finalize regulations consistent with the determination by June 1, 2023. There will be several opportunities for public comment and other input over the next year.

Ecology will use the rulemaking process to determine the scope and details of the final rules. For example, Ecology may eventually refine or narrow product scopes, enact concentration limits, and include exemptions. During the rulemaking process, Ecology will also develop compliance dates for the restrictions and reporting requirements. It will be important for Ecology to hear from product manufacturers in the coming year.

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.