States Move Forward With ‘Green Chemistry’ Chemical Reporting Laws And Incur Confusion, Potentially Significant Costs in Their Wake

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Originally published in Toxics Law Reporter on 12/13/2012.

As part of the ‘‘Green Chemistry’’ craze over the last few years, numerous states across the country have considered or enacted laws mandating companies selling products, predominantly children’s products, report to state government agencies data about the chemicals contained in their products. Two big pushes have spurred this movement. One is Congress’s inability to achieve consensus on amending and modernizing the Toxic Substances Control Act (TSCA), the primary federal law regulating chemicals in consumer products, last overhauled in 1976. The other is the passage in 2008 of the Consumer Product Safety Improvement Act (CPSIA), which was a reaction to imported products for children containing excessive amounts of lead and heavy metals from China.

While the various states that have enacted, or are considering, these chemical reporting regulations certainly have laudable goals in encouraging manufacturers to phase out harmful chemicals and identify safer alternatives, what does that really mean in practice? On what scientific basis is a chemical harmful? What ability does a manufacturer have to resist a state agency’s intention to phase out chemicals? Can the agency list chemicals as dangerous without an exposure assessment or sufficient qualitative data? And what is the cost to the company — both tangible and intangible — if customers are not able to discern what is truly a risk? In 2012, at least 28 state legislatures considered varying bills to address chemicals in consumer products. There are states that already require reporting and impose penalties for noncompliance, while some have deadlines approaching. The patchwork of legislation, though well meaning, creates potential traps for companies trying to do the right thing and comply with the various regulations while balancing legitimate concerns about the cost and confusion these new laws will likely create for customers.

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