Washington Advances the Western Front of Product Regulation

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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. This month’s action obligates Ecology to finalize the determination in a rulemaking by June 1, 2023.

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.

Priority Chemical Class

Priority Product Regulatory Determination

Organohalogen flame

retardants (HFRs)

Electric and electronic equipment (plastic device

casings)

Restriction on HFRs in external plastic device casings for electric and electronic products intended for indoor use. Reporting of HFRs in external plastic device casings for electric and electronic products intended for outdoor use.

HFRs and certain organophosphate flame retardants (OPFRs) Recreational polyurethane foam products

Restriction on HFRs and in-scope OPFRs in polyurethane uncovered foam, covered floor mats and flooring, and outdoor recreational products. Reporting of HFRs and in-scope OPFRs in covered wall padding.

Per- and polyfluoroalkyl substances (PFAS)

Carpets and rugs

Restriction on PFAS in carpets and rugs.

PFAS Leather and textile furnishings

Restriction on PFAS in indoor leather and textile furnishings. Reporting of PFAS in outdoor leather and textile furnishings.

PFAS Aftermarket stain- and water-resistance treatments

Restriction on PFAS in aftermarket treatments applied to textile and leather consumer products.

Phenolic compounds (bisphenols) Food and drink cans (can linings)

Restriction on most bisphenols in drink can linings. Reporting of most bisphenols in food can linings.

Phenolic compounds (bisphenols)

Thermal paper

Restriction on bisphenols in thermal paper.

Phenolic compounds (alkylphenol ethoxylates) Laundry detergent Restriction on alkylphenol ethoxylates in laundry detergent.
Ortho-phthalates Vinyl flooring

Restriction on ortho-phthalates in vinyl flooring.

Ortho-phthalates Personal care and beauty products (fragrances)

Restriction on ortho-phthalates used in fragrances in personal care and beauty products.

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.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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