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Washington State Enacts Sweeping Law to Regulate PFAS and Other Chemicals in Consumer Products and Packaging

The strongest state chemicals bill in the country was signed into Washington state law this week. The law empowers the state Department of Ecology (DoE) to restrict the use of chemicals in virtually any consumer product and its packaging. The department is first directed to focus on chemicals listed in the law – per- and polyfluoroalkyl substances (PFAS); phthalates; certain flame retardants; polychlorinated biphenyls (PCBs); and phenolic compounds – and then to identify other chemicals for potential restriction.

Scope of Products Covered

The law could impact virtually any consumer products – defined as “any item, including any component parts and packaging, sold for residential or commercial use” – that are not covered by an express exemption. Exemptions are available for inaccessible electronic components; motorized vehicles; and certain other federally-regulated products (e.g., food, drugs, and tobacco). The law could also impact the packaging of consumer products whether or not the products themselves are exempt. Before the state may restrict the use of chemicals in any consumer product or packaging, the product or packaging must be identified by DoE as a priority product. DoE must identify a first round of priority products by June 1, 2020. As part of its priority product selection process, DoE may require consumer product manufacturers to disclose product or packaging composition information to the state.

Scope of Chemicals Subject to Restriction

Only chemicals designated as priority chemicals may be subject to restrictions. The law itself designates an initial list of priority chemicals: PFAS; phthalates; certain flame retardants; PCBs; and phenolic compounds. DoE is required to designate at least five additional priority chemicals by June 1, 2024, and every five years thereafter. In selecting priority chemicals, the agency must consider potential hazards posed by a chemical, as well as its current uses in consumer products.

Restrictions and Reporting Requirements

By June 1, 2022, and every five years thereafter, DoE must consider regulatory actions 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 DoE. In deciding whether to restrict priority chemicals, DoE must consider existing uses of a chemical, potential exposures (including exposures to the environment, sensitive species, and subpopulations), and the availability of safer alternatives.

PFAS

The designation of the entire class of PFAS compounds, which includes thousands of substances with widely varying chemical profiles, as priority chemicals will have far-reaching implications for consumer products sold in Washington. Washington already banned intentionally added PFAS in Class B firefighting foams effective July 1, 2020, and requires notification of the presence of PFAS in firefighter protective gear. The scope of impact will depend on whether the state DoE limits the use of specific PFAS compounds, or focuses on specific consumer products, or both. The range of industries potentially affected is vast, including manufacturers of textiles, paper, and packaging (including food packaging), coatings, rubber, and plastics.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 130
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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
Nessa Coppinger Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Nessa focuses her practice on complex environmental litigation, including multi-district litigation and multi-party product liability.

Clients rely on Nessa to help them solve their most complicated, expensive, and intractable problems. She has led significant trial court and appellate matters, including federal appeals, to a successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also counsels on and litigates matters involving the National Environmental Policy Act (NEPA). In addition, she counsels clients on compliance with regulations related to lead-based paint in housing.

Nessa has achieved favorable results for FORTUNE® 100 companies, states, and counties in federal and state courts throughout the country. She litigates federal and state statutory claims, as well as common law tort claims, with particular experience in product liability and nuisance claims. She has played a leading role in large joint defense groups and in coordinated litigation with federal and state governments, as well as in smaller single-party litigation matters.

Examples of Nessa's experience include:

  • Obtaining a unanimous decision from the D.C. Circuit in a precedent-setting case regarding modification of an injunction under NEPA.
  • Securing summary judgment in the U.S. District Court for the District of Columbia defending the Bureau of Reclamation’s NEPA review of a $250 million water infrastructure project on behalf of the State of North Dakota.
  • Serving as one of the lead lawyers on a team defending numerous products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive in both federal and state courts, briefing novel issues regarding the scope of a state’s authority to bring claims on behalf of its citizens for the New Hampshire State Supreme Court.
  • Successfully defeating class certification on behalf of an oil refiner client in a proposed statewide class action in federal court against numerous refiners involving alleged damage to boats from certain fuels.
  • Representing a coke plant in a lawsuit alleging Clean Air Act and Resource Conservation and Recovery Act citizen suit claims as well as state common law tort claims.
  • Advising developers of water infrastructure on the NEPA process and issues arising under NEPA (including invasive species), including the preparation of a full Environmental Impact Statement.

Nessa chairs the firm’s Diversity and Inclusion Committee. She serves as the Book Editor for the American Bar Association’s Environmental Litigation Committee, and she also served several terms as the co-chair of the Environmental Law Forum of the Women’s Bar Association of Washington, DC.

202-789-6053
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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