For manufacturers of PIP (3:1), the downstream notification requirements became effective on March 9, 2021. Companies purchasing PIP (3:1) should have received notification from their suppliers regarding the restrictions contained in the rule. The PIP (3:1) Rule mandates the text that must be used in the notification and requires that notice be provided either in the Safety Data Sheet that accompanies the product or on product labels.
On July 7, 2021, the PIP (3:1) Rule’s downstream notification requirements also became effective for all companies that process or distribute PIP (3:1) or PIP (3:1)-containing products in commerce. Whether they received a notification from their supplier or not, companies that process or distribute such products must now notify persons to whom PIP (3:1) or products that contain PIP (3:1) are shipped of the rule’s prohibitions on the processing, distribution, and release to water of PIP (3:1), and do so before or concurrent with shipment by including the EPA-mandated language in the Safety Data Sheet or on the product label, in conformance with the requirements of 40 C.F.R. § 751.407(e). These obligations apply to all companies, including companies covered by the EPA’s no-action assurance and companies that are excluded from the PIP (3:1) Rule’s prohibition of the processing and distribution of PIP (3:1), such as companies that make new and replacement parts for motor vehicles and aerospace vehicles and companies that make vehicles that include such parts.
Finally, companies may lose the limited protection provided by the EPA’s no-action assurance if they fail to comply with these new downstream notification requirements. The EPA’s no-action assurance for the processing and distribution prohibition only extends to companies that comply with all other aspects of the PIP (3:1) Rule – including the downstream notification obligation. A company that has continued to process and distribute PIP (3:1) and PIP (3:1)-containing articles may face an EPA enforcement action for both a failure to provide downstream notification and a failure to comply with the PIP (3:1) Rule’s processing and distributing prohibition. Companies that are currently covered by the EPA’s no-action assurance that are unclear on how to comply with the PIP (3:1) Rule’s downstream notification requirements should review the regulations and consult with counsel.