July 20, 2015

　　On July 3, the Oregon state legislature passed S. 478, the Toxic-Free Kids Act, by a vote of 43 to 17 in the House and a vote of 18 to 11 in the Senate. The bill will likely be signed into law this month by Gov. Kate Brown. After many years of the legislation being introduced and debated, Oregon finally succeeded in passing its own chemicals management program that is modeled on Washington state’s Children’s Safe Products Act and adopts Washington’s list of 66 chemicals, including formaldehyde and benzene.

　　Oregon joins other states such as Maine, Minnesota, Vermont, Washington, and California in developing its own program to regulate chemicals.

　　The Toxic-Free Kids Act creates a system for prioritizing chemicals of high concern to children, requires manufacturers of children’s products that use these chemicals to notify the state, and requires manufacturers to remove or substitute the chemicals unless they are granted an exemption.

　　Legislation

　　If signed into law, the Toxic-Free Kids Act would do the following:

　　Authorize the Oregon Health Authority (OHA) to create and maintain a list of chemicals of high concern, which must include the 66 chemicals on Washington State’s list of chemicals of high concern. This list must be revised every three years, and OHA must consider adding or removing chemicals from the list if Washington or another state that maintains a similar list has added or removed a chemical. OHA cannot add more than five chemicals to the list of high priority chemicals during each three-year revision period. OHA will establish this list by Jan. 1, 2016.

　　Require manufacturers of children’s products to disclose to OHA that their children’s products contain at or above the de minimis level for a chemical of high concern. The first biennial notices required to be submitted must be submitted to OHA no later than Jan.1, 2018.

　　Allow OHA to enter into reciprocal data sharing agreements with other states in which manufacturers of children’s products are required to disclose information related to high priority chemicals of concern for children’s health used in children’s products.

　　Require OHA to exempt manufacturers of children’s products from the disclosure requirements if the waiver application demonstrates that:

　　o A high priority chemical of concern for children’s health used in children’s products is present in the children’s product otherwise subject to notice requirements of this section only as a contaminant;

　　o The manufacturer conducts a manufacturing control program for the contaminant; and

　　o The program meets minimum standards for a manufacturing control program as set forth by OHA rule.

　　Create a process to phase out chemicals and replace them with safer alternatives. On or before the date that a manufacturer of a children’s product submits the third biennial notice (disclosure requirements), the manufacturer must remove or make a substitution for the chemical or seek a waiver if the chemical is present in a children’s product that is:

　　o Mouthable;

　　o A children’s cosmetic; or

　　o Made for, marketed for use by, or marketed to children under 3 years of age.

　　Allow small manufacturers (25 or fewer employees) to get a 2-year extension from this requirement.

　　Exempt manufacturers if the chemicals of concern for children’s health are used in children’s products at levels that are at or below the allowable levels for children’s products as established by the federal Consumer Product Safety Improvement Act; also exempt small businesses, meaning manufacturers of children’s products with annual worldwide gross sales of less than $5 million.

　　Require OHA to grant a waiver to a manufacturer of children’s products that applies for a waiver if the application:

　　o Includes an alternatives assessment demonstrating that removal of the high priority chemical is not financially or technically feasible; or

　　o Includes a quantitative exposure assessment demonstrating that the high priority chemical is not reasonably anticipated to result in exposure based upon an analysis of leachability and bioavailability of the high priority chemical.

　　Authorize OHA to impose civil penalties up to $5,000 for a first violation and $10,000 for subsequent violations. Money from penalties will go into a Chemicals of Concern for Children’s Health Fund.

　　Public Response

　　Champions of the Oregon legislation argued that the bill will protect children from potentially hazardous chemicals by requiring disclosure and phasing out of these chemicals in consumer products targeted at children, or “children’s products.” Thebill defines children’s products as “any of the following products that are made for, marketed for use by or marketed to children under 12 years of age: (i) a product designed or intended by the manufacturer to facilitate sucking, teething, sleep, relaxation, feeding or drinking; (ii) children’s clothing and footwear; (iii) car seats; (iv) children’s cosmetics; (v) children’s jewelry; (vi) toys.” The bill includes a list of exemptions from the definition. The concern for many legislators and the environmental community, including the Oregon Environmental Council, is that the presence of certain chemicals in children’s products could be linked to increased risk of cancer and other developmental issues. Before the legislation, Oregon did not have requirements for disclosure of chemicals in certain products.

　　Opponents of the legislation, which primarily included manufacturers of consumer products that fell within the scope of the legislation, argued that the regulation of chemicals in these products should be maintained at the federal level, and noted the multitude of existing safety regulations that protect children from chemicals. Additionally, the legislation does not factor in level of exposure or safety assessments, but rather presumes risk of harm based on the product containing the chemical above the de minimis level (for an intentionally added chemical, that means the practical quantification limit, and for contaminants, a concentration of 100 ppm). Finally, many industries, including ACA, argued that the proposal will add to the patchwork of different existing and emerging state regulations, further contributing to the unnecessary burden on companies doing business in Oregon.

　　Given the momentum in the 114th Congress to pass substantive reforms of the federal Toxic Substances Control Act (TSCA), ACA supports these federal efforts to strengthen chemical safety. The U.S. Senate will soon vote on S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bill that already has secured 52 co-sponsors from across the aisle. Similarly, the House Bill H.R. 2576, the TSCA Modernization Act, passed almost unanimously in June with broad bipartisan support. Both bills will create a cohesive, national chemical management system that will give consumers, retailers, manufacturers, public health advocates, and regulators across all 50 states the kind of predictability, consistency, and certainty that the national marketplace needs, while also strengthening oversight and providing Americans with more confidence in the safety of chemicals.

　　Without a focus on federal reform, ACA believes that different state programs such as Oregon’s and differing regulations will continue to emerge every year, and now the trend is that counties are acting in the absence of federal reform. So far, three counties in the state of New York have passed chemical ordinances (Albany, Suffolk, and Westchester) and several others (Rockland, Dutchess, Monroe, Erie, Onondaga) are considering ordinances for future passage. Many of these ordinances create straight bans for the use of antimony, formaldehyde, arsenic, lead, mercury, cobalt, cadmium, and mercury in children’s products and children’s apparel, without any de minimis threshold allowed.

　　To support TSCA reform efforts, please visit ACA’s CoatingsConnect grassroots advocacy page to send letters to your U.S. Senators encouraging them to support the passage of S. 697.

　　Contact ACA’s Javaneh Nekoomaram or Stephen Wieroniey for more information.