Landscape – Chemical Regulations Evolve to Consumer Products
In key markets around the globe, governments have adopted regulatory frameworks to manage the risks that chemicals may pose, controlling the manufacture, importation, transportation, storage, use and marketing of chemicals, and are now increasingly focused on the regulation of consumer products. State governments in the United States and countries in Europe, Asia and Latin America are increasingly enacting Green Chemistry and product stewardship laws to regulate product design, ban or restrict the use of certain chemicals, expand environmental labeling and certification programs and manage end-of-life consumer and commercial products. In the United States, the International Chemicals Clearinghouse (IC2) states have emerged as leaders in this regard: California, Connecticut, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Washington.
Specifically, the Toxic Substances Control Act involved a single federal program authorizing the U.S. EPA to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. That has now radically changed, with the Green Chemistry movement shifting its attention to the 50 separate states. The consequence for manufacturers, importers, distributors and retailers of consumer products in the United States is profound. Currently, the states have enacted over 400 separate toxic laws – and have proposed hundreds more – regulating every kind of consumer product. Thus, rather than having a single set of federal rules to guide their product planning, and chemical use and innovation decisions, companies selling consumer products in the United States must now be concerned with varying sets of proposed and enacted chemical regulatory restrictions in virtually every state in which they do business. Of all the state programs, perhaps the most ambitious is California’s Green Chemistry Initiative, now termed the Safer Consumer Product Regulations, a program which will undoubtedly influence developments in other states, and one with which Alston & Bird has a substantial depth of expertise.
Alston & Bird’s Green Chemistry, Chemical and Product Regulation team is uniquely qualified to help its clients successfully navigate this increasingly complex world. We counsel clients on safety, compliance and liability issues raised by the growing panoply of international, federal and state laws governing chemicals, products and the supply chain, including:
|EU Reach||FTC Regulations|
|Canada Consumer Products Act||FDA|
|Pesticide Registration||Packaging and Labeling Laws|
|Conflicts Mineral Laws||E-Waste|
|RoHS and WEEE||Product Stewardship and Take-Back Laws|
|Lacey Act||Hazardous Waste Regulations|
|Flammable Fabrics Act||Consumer Product Safety Improvement Act|
|ASTM F963 Toy Safety Specification||Virginia Graeme Baker Pool and Spa Safety Act|
|Federal Hazardous Substances Act||Washington Children's Safe Product Act|
Moreover, our firm has key connections in the regulatory and NGO communities nationwide, allowing us to provide our clients with critical services to assure them that they are in compliance where they sell their products, and that they are alerted to emerging chemical regulation trends sufficiently far in advance to do intelligent product planning and to also design appropriate engagement strategies.
Approach to Chemical and Product Regulation
Alston & Bird helps clients take a proactive—rather than reactive—approach to these developments, offering product sustainability legal services that help companies maximize the opportunities presented by these changes, while also ensuring the best management of the health and environmental impacts across the life cycles of their products. Drawing on its expertise in the “traditional” environmental, health and safety-related regulatory services, as well as its deep bench of talent in products liability, class action and toxic tort litigation, Alston & Bird provides sophisticated advice and representation on domestic and international environmental issues affecting the design, marketing, use and disposition of our clients’ products.
Together with our global partners, we’ve similarly followed the evolution of chemical and product regulation in Europe, Asia, and beyond. Alston & Bird has the expertise to assist clients in navigating the dynamic chemical management landscape in state, federal and global contexts.
Undoubtedly the most aggressive Green Chemistry program in the United States is found in California, applying to a broad range of “consumer products” sold in California. The California regulations leave many of the details for future development – including exactly which combinations of products and chemicals will initially be subject to regulation. Alston & Bird has the government relationships and the experience to provide clients with a strong and effective voice in shaping these details.
Complying With California’s Comprehensive Green Chemistry Regulatory Scheme
California’s Green Chemistry Initiative
California’s green chemistry program – which many observers believe will serve as a model for programs in other states and nationally -- has implications for all companies that produce consumer products sold in California, regardless of where a company is located. “Green chemistry” is California’s innovative approach to exporting its environmental standards to the worldwide manufacturing industry. By focusing on consumer products sold into California, and regulating the design of those products and the processes by which they are manufactured, California aims to reduce overall use of what the state perceives as potentially hazardous and toxic substances.
How Does California’s Program Affect Your Business?
After a four year process of development, the DTSC has published a set of regulations that are anticipated to become effective in the spring of 2013.
The DTSC views any producer, private label manufacturer and importer of a consumer product into California as responsible for complying with the requirements of the regulations, regardless of where that company does business. Moreover, the regulations grant DTSC broad discretion during the implementation phase, which will render predictability hazardous as we move from the regulatory development process to the compliance phase. Alston & Bird’s involvement throughout the statutory and regulatory development processes renders our team uniquely positioned to assist clients in this rapidly developing area of the law.
Alston & Bird’s California Green Chemistry Compliance Program
Alston & Bird not only assists its clients in generally understanding the requirements of California’s Green Chemistry regulations, and how those regulations impact our clients’ particular businesses, we provide services in several critical areas to assure our clients’ ongoing compliance.
- Managing the supply chain communication
- Ensuring supply chain transparency
- Developing internal compliance tools and reporting systems
- Managing chemical and toxicity data
- Analytical testing issues
- Preparing of reports and AAs
- Protection trade secret and CBI
- Legislative and regulatory advocacy, strategic communications and litigation