While Washington State Eyes Regulations Involving Electronics, Carpet, Printing Inks, Food Cans, Laundry Detergent, Thermal Paper, Vinyl Flooring, and Fragrances, You Should Start Planning Now
By Bao M. Vu, of Counsel, Stoel Rives LLP.
Washington continues to move toward aggressively limiting certain chemicals in consumer products. If you manufacture, sell, or distribute any of the following products into the state of Washington, or plan to in the future, you should start planning now for likely regulation: electronics, carpet, printing inks, food cans, laundry detergent, thermal paper, vinyl flooring, and fragrances.
Washington State’s New Act
Washington’s first significant statutory scheme placing strict chemical content limits in consumer products was passed in 2008 and is known as the Children’s Safe Products Act (“WCPSA”). The WCPSA principally limits the use of certain chemicals in children’s products, such as lead, cadmium, phthalates, and flame-retardant chemicals. The WCPSA also gives the State’s Department of Ecology (“Department”) the authority to come up with rules to define and broaden reporting requirements for certain entities in the distribution chain, including rules that broaden the reporting requirements for chemicals deemed Chemicals of High Concern to Children.
More recently, Washington’s legislature passed Substitute Senate Bill 5135, also known as the Pollution Prevention for Healthy People and Puget Sound Act (the “Act”). Pursuant to that Act, the Department developed an implementation program called “Safer Products for Washington.”
What’s different about the Act, as compared to existing Washington law, is that it is designed to implement a “class-based” approach to regulating toxic chemicals. For example, existing Washington law bans the specific chemical bisphenol A (BPA) in water bottles. Complying with that ban, marketers advertised that their products were “BPA-free.” Though those marketers were making accurate claims, they sometimes substituted BPA for bisphenol S (BPS), which, though not barred, has endocrine disruption effects similar to BPA.
The Priority Chemicals
The Act’s first set of so-called “priority chemicals” and deadlines demonstrate the class-based approach, as well as the products that manufacturers, distributors, and retailers should start paying attention to now. Under the Act, the first set of priority chemicals, which were statutorily determined, are:
- Organohalogen flame retardants and flame retardants that are statutorily identified
- Perfluoroalkyl and polyfluoroalkyl substances (PFAS)
- Polychlorinated biphenyls (PCBs)
- Phenolic compounds
Though the first set of priority chemicals were identified in the Act, by June 1, 2024, and then again every five years, the Department is required to come up with at least five more priority chemicals.
The Priority Products & Their Correlating Chemical Concern
For now, in light of the first set of priority chemicals, the Act requires the Department to identify by June 1, 2020, priority consumer products that are a significant source or use of one or more of the priority chemicals listed as the first set under the Act. The Department’s Priority Consumer Products Draft Report to the Legislator: Safer Products for Washington Implementation Phase 2 identifies the following priority products:
- Electronic and electronic equipment, specifically device casings (for flame-retardant content)
- Carpet (for PFAS content)
- Printing inks (for PCBs content)
- Food cans, laundry detergent, and thermal paper (for phenolic compounds: bisphenols, alkylphenol ethoxylates, and bisphenols, respectively)
- Vinyl flooring and fragrances in personal care and beauty products (for phthalates)
To date, there is nothing that suggests that the Department’s final report, due in just a few months, will add or remove any of these products as priority products.
Next, by June 1, 2022, and every five years thereafter, the Department will come up with regulatory actions involving the specific priority chemical class in the specified priority products. The Department has the option of taking no action (under certain circumstances), restricting the sale in Washington of specific products that contain specific chemical levels, and/or implementing a reporting requirement.
There are numerous other deadlines and considerations under the Act and its implementing Safer Products for Washington program that may ultimately affect how the state will regulate priority chemicals and priority products, leaving much to be answered before any final regulation. However, manufacturers, distributors, and retailers should start seeking priority chemical-free alternatives if their business involves the sale of the draft priority products. At the very least, those entities should start learning of the chemical composition of those and similar products to be prepared for any forthcoming regulation.
About the Author: Bao M. Vu is an attorney with the law firm Stoel Rives LLP. He regularly advises clients on compliance with complex consumer protection and environmental statutes and regulations. More information about his practice can be found here. He routinely provides free consultations to RVCF members, and he can be reached at firstname.lastname@example.org or 415-500-6572.
 The next reporting deadline under the WCPSA is January 31, 2021, for products offered for sale in Washington from January 1, 2020, to December 31, 2020.