October 6, 2022

Volume XII, Number 279

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Washington Advances the Western Front of Product Regulation

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.

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.

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.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 164
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About this Author

Ryan J. Carra Environmental Attorney Beveridge & Diamond Washington, DC
Principal

A Ph.D. in Organic Chemistry compliments Ryan's law practice.

Ryan uses his extensive technical background to counsel clients in the chemicals, products, and energy sectors regarding environmental regulatory issues. Ryan’s experience includes:

  • Advising clients on Toxic Substances Control Act (TSCA) matters, including implementation of the 2016 reform legislation.
  • Advising product manufacturers, retailers, and other clients on extended producer responsibility, waste classification, chemical hazard classification, chemical notification...
202-789-6059
K. Russell LaMotte Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Russ helps global companies navigate international environmental regulatory regimes and develop product compliance and market-access strategies.

He served for over ten years as an international lawyer at the United States Department of State, representing the U.S. Government in designing, negotiating, or implementing most of the major multilateral environmental and oceans agreements. His experience and representative matters include: 

Chemicals, Substances in Articles, and Product-Related Environmental Compliance

  • Advising chemicals, pesticides,...
202-789-6080
David C. Weber Air & Climate Change Attorney Beveridge & Diamond Seattle, WA
Office Managing Principal

David C. Weber is the Managing Principal and co-founder of Beveridge & Diamond’s Seattle office. 

He also serves as the co-chair of the firm’s Air and Climate Change group. Dave focuses his practice on environmental litigation and compliance counseling, including air and water quality regulation, hazardous waste handling and remediation, and contaminated site cleanups under federal and state laws.

A cornerstone of Dave's practice is advising clients on national air quality and climate change issues. He represents businesses in connection with enforcement proceedings,...

206-315-4811
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