Companies with confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) should mark their calendars—prompt action may soon be required to maintain their claims. CBI claims asserted under amended TSCA will begin to expire in June 2026, and submitters must reassert their claims prior to expiration to prevent the public disclosure of commercially sensitive chemical information.
Update – January 7, 2026
On January 6, 2026, EPA published a Federal Register notice describing its intended process for implementing the statutory requirements governing CBI expirations and reassertions. This post has been updated to reflect new information provided by EPA in the notice.
The notice states that “EPA expects to provide further guidance [on CBI claim expirations], to solicit and answer questions, and potentially to host a webinar with information on notices of expiration and instructions for requesting extensions.”
When Will My CBI Claim Expire?
In 2016, Congress passed the Lautenberg Amendments to TSCA, which overhauled the statute’s CBI provisions. Under amended TSCA, most CBI claims—including claims for specific chemical identities—expire after ten years. As a result, many CBI claims asserted in 2016 will expire in 2026.
Under TSCA section 14(e)(1)(B), the ten-year protection period starts when a submitter asserts a claim, not when the submitter provides substantiation. Although substantiation is generally required at the time a claim is submitted, some submitters may have provided substantiation at a later date. This is especially true of claims that were submitted soon after the statute was amended. Submitters should therefore calculate expiration dates based on the date of assertion and note that claims might expire before the ten-year anniversary of their substantiation.
Expiration dates for some chemical identity CBI claims are available on the TSCA Inventory.
Update: EPA’s January 2026 notice clarifies that claims for specific chemical identities expire ten years from the date the first claim for that substance was asserted. If a chemical identity is claimed as confidential by multiple companies, this may result in a claim expiring less than ten years after it was asserted by a subsequent submitter.
For example, if Company A asserted a CBI claim for a chemical identity in 2016, and Company B asserted a CBI claim for the same chemical identity in 2019, CBI protection for the chemical identity would expire in 2026—even though only seven years have passed since Company B asserted its claim.
At present, it is unclear whether EPA would provide CDX notice of the impending expiration to both companies or only to the submitter that asserted the first claim. (Notice procedures are discussed below.)
What Do I Have to Do to Reassert and Re-Substantiate my CBI Claim?
Submitters may extend CBI claims for subsequent ten-year periods by submitting a request for extension to EPA. Section 14(e)(2). A request for extension must include substantiation and must be submitted to EPA at least 30 days before the claim is set to expire. Section 14(e)(2)(B)(i).
The substantiation requirements for a request for extension are the same as those that apply when asserting a claim initially. Under 40 CFR 703.7(g), submitters have the option to either submit new substantiation or rely on substantiation that was provided with the initial submission, certifying that the substantiation remains true and correct.
The CBI regulations require that claims be submitted through EPA’s Central Data Exchange (CDX). 40 CFR 703.5(f). In a response to comments document from the 2023 rulemaking that developed those regulations, the agency indicated that it anticipated developing a new CDX reporting form for submitters to reassert expiring claims. EPA’s CBI FAQ page, last updated in August 2025, continues to signal that an electronic reporting tool is planned.
In some cases, submitters may find that it is no longer necessary to maintain a CBI claim, or that the subject information is no longer eligible for CBI protections because it has become publicly available.
Update: In the January 2026 notice, EPA confirmed that it is currently developing a CDX reporting tool for requests for extension and expects to have the tool in place before the first claims expire. If implementation is delayed, EPA instructs submitters to postpone submitting requests for extension until the tool becomes available. The notice states that “EPA will not release any information subject to expiring claims until the notice and review requirements of section 14(e) are met.”
On a CBI expiration guidance webpage updated January 5, 2026, EPA added that it will not disclose information covered by a timely request for extension if the agency does not complete its review of the request before the expiration date. Under section 14(g)(1)(D), “the information will continue to be protected until the review is complete and any applicable appeal period under section 14(g) has elapsed,” the webpage states.
Will EPA Provide Advance Notice of My CBI Claim’s Expiration?
Section 14(e)(2)(A) provides that EPA “shall provide to the person that asserted the claim a notice of the impending expiration of the period” at least sixty days before a CBI claim expires. EPA will address this provision by publishing a list of TSCA submissions with expiring confidentiality claims on its website or other appropriate platform. 40 CFR 703.5(h)(3). Submissions must be added at least 60 days prior to expiration, along with instructions for reasserting and substantiating expiring claims.
In the response to comments document, EPA asserted that “Section 14(e) does not specify that EPA must provide individual notice of claim expiration.” Nonetheless, during the rulemaking the agency stated its intent to provide individual notice via CDX, which is authorized under 40 CFR 703.5(h)(2).
EPA’s CDX notification system is imperfect. Submitters may miss CDX notifications if the contact information associated with CBI claims is outdated. Companies should therefore review their TSCA submissions to assess whether contact information is current. Companies may need to contact the CDX Helpdesk for assistance gaining access to submissions made by former employees. This process may take several weeks if a company needs to create a new CDX account and get that account connected to filings submitted by a former employee. If the original filing was submitted by an entity that was not part of the company at the time of the submission, additional steps may be required, such as filing a notice of transfer. 40 CFR 703.5(h)(1). That said, EPA’s response to comments document indicated that companies will not need access to the original CDX submission to reassert claims.
In general, TSCA requires EPA to provide actual notice before disclosing information claimed as CBI, such as information covered by a denied CBI claim or a denied request for extension. Section 14(g)(2). However, the statute makes an exception for expired CBI. Where no timely request for extension is submitted, TSCA does not require EPA to provide actual notice before disclosing expired CBI, provided EPA has given the 60-day notice described above. Section 14(g)(2)(C)(iii)(II). As a result, a company that does not receive a CDX notification and does not monitor EPA’s list of expiring claims may not learn that a CBI claim has expired until after the covered information has been publicly disclosed.
Update: EPA’s January 2026 notice reiterates that the agency anticipates providing notice of impending CBI claim expirations via CDX, “[a]lternatively, or in addition” to the website listing. The notice also reflects EPA’s view that publication of the website listing satisfies the 60-day notice requirement in section 14(e)(2)(A). Whether a court would agree that a website posting—as opposed to personal notice—is legally sufficient remains an open question.
The notice further affirms that a “notice of disclosure [is] not required where a CBI claim has expired and no person submitted a timely extension request following [a] timely notice of expiration.” EPA also observes that some companies may have submitted information claimed as CBI outside of CDX, such as paper filings predating electronic filing requirements or physical material provided to EPA pursuant to a TSCA subpoena or inspection.
Considering that:
- CDX contact information may be outdated;
- CBI claims may have been made outside of CDX; and
- It is unclear whether all companies with CBI claims for a specific chemical identity will be notified via CDX when the first claim expires;
It is highly advisable that companies regularly review EPA’s list of expiring claims, rather than relying solely on CDX notifications, to avoid inadvertent expiration of CBI protections.
Are Any CBI Claims Exempt from the Reassertion and Re-Substantiation Requirements?
Pursuant to section 14(e)(1)(A), no action is necessary to maintain CBI claims that are exempt from substantiation and review according to sections 14(c)(2) and 14(g). These include claims for specific information describing manufacturing processes, marketing and sales information, information identifying suppliers or customers, and specific production volumes, among others.
This post is for informational purposes only and does not constitute legal advice.
House Science Committee to Hold January 8 Hearing on Chemical Regulation
/in News & Events, TSCA ReformOn January 8, 2026, at 10am ET, the House Committee on Science, Space, and Technology will hold a hearing entitled “Chemistry Competitiveness: Fueling Innovation and Streamlining Processes to Ensure Safety and Security.”
According to Inside EPA, the committee said in an announcement that the hearing will “examine the state of chemical research and development in the United States and how the regulatory environment affects progress.” It comes after an October Senate Environment and Public Works Committee hearing on chemical regulation, which included substantial discussion regarding possible Toxic Substances Control Act (TSCA) reform.
The hearing will feature the following witnesses:
A livestream of the hearing will be available on YouTube.
New Mexico to Hold Hearing on PFAS in Products Rulemaking
/in News & Events, PFAS, State PolicyBeginning February 23, 2026, at 9am MT, the New Mexico Environmental Improvement Board (EIB) will hold a hybrid public hearing to consider the adoption of a proposed rule to implement the state’s PFAS in products law. EIB is currently accepting public comments in advance of the hearing.
A previous post addressed the proposal’s novel PFAS labeling requirements, which would apply to all products with intentionally added PFAS beginning January 1, 2027. In addition to labeling, the proposed rule implements statutory product prohibitions, establishes manufacturer reporting obligations, and outlines the process for manufacturers to obtain “currently unavoidable use” (CUU) designations from the New Mexico Environment Department (NMED).
Much of the proposed rule closely tracks the underlying statute, HB 212. However, the statute merely authorized—rather than required—labeling requirements, and left the CUU framework unspecified. The proposed rule fills in those gaps.
Product Bans
The proposed rule implements HB 212’s phased-in product bans. Beginning January 1, 2027, New Mexico will prohibit the sale of the following products with intentionally added PFAS:
On January 1, 2028, the prohibition will expand to include:
Finally, beginning in 2032, the prohibition will apply to all products except:
Although HB 212 authorizes the EIB to add additional product categories to the 2027 and 2028 bans, the proposed rule limits prohibitions to those required by the statute.
Manufacturer Reporting Requirements
On or before January 1, 2027, HB 212 requires manufacturers that sell products containing intentionally added PFAS to submit the following information to NMED:
Manufacturers must update their submissions within 30 days of a significant change. The proposed rule defines “significant change” as the intentional addition of a new PFAS, a 10% or greater increase in the concentration of PFAS, or a change in responsible official or contact information.
The proposed rule sets a fee of $2,500 for the initial report and $1,000 for each subsequent significant change report, with fees adjusted for inflation. It also establishes procedures for requesting reporting deadline extensions or waivers where substantially equivalent information is already publicly available.
Under HB 212, reporting obligations do not apply to products that are statutorily exempt or that have received a CUU designation.
Currently Unavailable Uses (CUUs)
To avoid prohibition of a product containing intentionally added PFAS, the proposed rule would allow a manufacturer—or a group of manufacturers—to submit a proposal to NMED requesting a CUU designation. A separate proposal would be required for each individual combination of product category and associated industrial sector.
CUU proposals would generally be due at least 12 months before the effective date of the applicable sales prohibition. For products subject to the January 1, 2027 prohibition, however, CUU proposals submitted by October 31, 2026 would be deemed approved pending NMED review.
The proposed rule would require that CUU proposals include:
Most of these categories include additional, detailed information requests. For example, when identifying comparable regulatory programs in other jurisdictions, submitters must specify whether the prohibition is absolute or includes a CUU-like process and, if so, whether the submitter has applied under that program and the status of the application.
CUU designations would expire three years after approval unless a manufacturer submits a new CUU proposal. The proposed rule establishes a $5,000 fee for an initial CUU application and a $2,500 fee for renewals, with fees adjusted for inflation.
For CUU proposals related to the 2027 prohibitions, NMED would issue final determinations by March 1, 2027. A list of approved CUUs would be made available on NMED’s website.
Testing and Enforcement
HB 212 authorizes NMED to require manufacturers to test products if the department has reason to believe that a product contains intentionally added PFAS. The proposed rule sets a threshold for PFAS of 100 parts per million (ppm). If test results exceed that threshold, the manufacturer would be required to submit an initial report and, if the product is prohibited, notify distributors and retailers.
Manufacturers that violate HB 212 or its implementing regulations may be subject to civil penalties of up to $15,000. NMED may also assess administrative costs incurred in enforcing the statute and rules for each day a violation occurs.
More information about HB 212, also known as the PFAS Protection Act, is available on NMED’s website.
Governors Urge EPA to Add Microplastics to UCMR 6 Drinking Water Monitoring
/in EPA, MicroplasticsDemocratic governors from seven states have petitioned EPA to include microplastics in its upcoming Unregulated Contaminant Monitoring Rule 6 (UMCR 6), triggering a Safe Drinking Water Act (SDWA) mandate for EPA to include microplastics in the rule unless the administrator determines it “would prevent the listing of other contaminants of a higher public health concern.”
In the petition, dated November 26, 2025, the governors argue that monitoring microplastics under UCMR 6 would establish a foundation for the future promulgation of drinking water standards. “[T]he potential risks to public health posed by this contaminant, its expected prevalence, the need for a nationwide testing standard in order to better understand the foregoing, and the great public interest in this contaminant together warrant monitoring under the UCMR for future regulation under SDWA,” the petition states.
“[I]nformation on [microplastics’] prevalence, health impact, and public interest is ahead of other aspects of the scientific and policy state of play, especially consistent definitions and testing methodologies,” it adds. “By including microplastics in UCMR 6, EPA can provide leadership to the scientific and regulatory community on consistent definitions and testing methodologies that lag behind.”
The petition identifies several potential public health concerns associated with microplastics, including their ability to act as vectors for toxic chemicals. Other cited risks include cellular and tissue damage and potential developmental effects in children.
The petition also highlights the role of consumer products in the generation of microplastics. It distinguishes between primary microplastics, which are intentionally manufactured for use in cosmetics and in plastic production processes, and secondary microplastics, which result from the degradation and wear of products such as textiles, tires, paints, fertilizers, mulch films, and food packaging.
Statutory Context
EPA issues the UMCR every five years to require public water systems to collect occurrence data for contaminants that are not yet subject to SDWA drinking water standards. The most recent UMCR, promulgated in 2021, required monitoring for lithium and 29 PFAS.
Despite microplastics’ heterogeneity, the governors—representing New Jersey, Delaware, Illinois, Maryland, Michigan, Wisconsin, and Connecticut—argue that microplastics qualify as a “contaminant,” under SDWA, which broadly defines the term as “any physical, chemical, biological, or radiological substance or matter in water.”
A petition from seven governors is sufficient to require EPA to include a contaminant in a UCMR unless the administrator determines that another contaminant presents a higher public health priority. No more than 30 contaminants may be included in a single UCMR.
Additional information on UCMR 6 is available on EPA’s website.
New Jersey PFAS in Products Bill Awaits Governor’s Signature
/in PFAS, Right-to-Know, State PolicyOn December 22, 2025, New Jersey’s legislature passed SB 1042, which would restrict the use of intentionally added PFAS in cosmetics, carpet treatments, and food packaging, and impose additional labeling requirements for cookware. If signed into law, New Jersey would join over a dozen states that have adopted similar restrictions.
The bill employs a familiar definition of PFAS: “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”
Product Bans and Labeling Requirements
Two years after enactment, SB 1042 would ban the sale of the following products with intentionally added PFAS:
In addition, two years after enactment, SB 1042 would require that cookware containing intentionally added PFAS in a handle or food contact surface include the statement “This product contains PFAS” on its product label. This statement would be required in both English and Spanish and on online listings.
The bill provides the New Jersey Department of Law and Public Safety’s Division of Consumer Affairs significant enforcement authority, including civil penalties of up to $20,000 per day per violation and the ability to conduct random audits to ensure manufacturer compliance.
Exceptions and Exclusions
The bill includes several exemptions that may reduce compliance burdens for manufacturers:
Unlike some state-level PFAS legislation, SB 1042 does not establish specific limits on the amount of total organic fluorine in covered products.
Other Provisions
The bill directs the New Jersey Department of Environmental Protection (NJDEP) to:
The legislation appropriates $4.5 million for NJDEP to carry out these objectives. NJDEP would be required to submit annual reports starting two years after enactment to summarize its findings.
More on SB 1042, known as the “Protecting Against Forever Chemicals Act,” can be found on the New Jersey Legislature’s website.
Challenge to Mondelēz Sustainability Claims Advances With Narrowed Scope
/in Green MarketingA Illinois judge has allowed a putative class action challenging sustainability claims on Mondelēz International, Inc. products to proceed, while dismissing claims involving unpurchased products and requests for injunctive relief.
The case concerns a variety of sustainability-related representations on Mondelēz products, including “100% Sustainably Sourced Cocoa” claims on Oreo-brand cookies. The plaintiff, a California consumer, alleges that these representations are misleading because cocoa supply chains involve child and forced labor and environmentally destructive practices.
In an order issued December 18, 2025, the court found the plaintiff’s theory of deception plausible. While agreeing with Mondelēz that the plaintiff “cannot rely solely on sector-wide allegations,” the court concluded that she pleaded “sufficient Mondelēz-specific allegations to survive a motion to dismiss,” including references to an investigative exposé and prior litigation detailing labor abuses.
Mondelēz also argued that its use of the term “sustainable” was nonactionable puffery tied to its Cocoa Life program, which has sustainable aspirations. But when read together with the front-label “100%” promise and back-panel language about “protect[ing] people & planet,” the court held that a reasonable consumer might believe that Oreo’s sourcing practices are “100% sustainable.”
The court did, however, narrow the scope of the case. It rejected the plaintiff’s attempt to represent all purchasers of Mondelēz products bearing sustainability claims, limiting the action to the Oreo and Toblerone products she personally purchased. Acknowledging a split among courts on this issue, the court held that the plaintiff lacked standing to pursue claims involving unpurchased products at this stage of the litigation.
For similar reasons, the court dismissed the plaintiff’s claim for injunctive relief, concluding that any future injury was “paradigmatically speculative.”
The court also pared back the Toblerone claims, holding that the Cocoa Life seal in isolation could not be misleading. Because the Toblerone bars did not include accompanying sustainability text, “it necessary narrows” the plaintiff’s claims, the court held.
Consolidation Denied
Mondelēz separately moved to consolidate the case with another pending challenge to its “100% Sustainably Sourced Cocoa” representation and Cocoa Life seal. The court denied the motion, finding that consolidation would prejudice the other plaintiff.
The second challenge focuses on Mondelēz’s admitted practice of mixing cocoa beans from Cocoa Life-registered farms with beans from unregistered farms. That plaintiff alleges that Mondelēz’s “100%” representation is misleading because the company uses a “mass balance” accounting approach and fails to disclose the resulting lack of traceability and compositional uncertainty.
As the court summarized, “one plaintiff disputes Cocoa Life’s sustainability, and the other objects to there not being enough Cocoa Life cocoa in the final product.”
Although Mondelēz argued that the differing theories were relevant to class certification rather than consolidation, the court found the distinction unpersuasive. “Certification remains a question for another day,” the court explained, “but for now, it seems clear that all parties believe it untenable to pursue two theories of deception in one class action.” The court noted that interim class counsel would therefore be “likely, if not certain,” to abandon one of the theories.
The motion observes that counsel “previously abandoned a different consolidated plaintiff’s derivative claims,” and that the two theories here “seemingly conflict” due to the second plaintiff’s “indifference with ‘the integrity of the Cocoa Life program.’”
The cases are Waggener Van Meter v. Mondelēz International, Inc., No. 24-cv-7368 (N.D. Ill.), and Pearson v. Mondelēz International, Inc., No. 25-cv-10819 (N.D. Ill.).
EuroChem Faces TSCA Lawsuit Over Alleged CDR Reporting Failures
/in CDR, Enforcement, TSCAOn December 15, 2025, the Center for Environmental Health (CEH) filed suit against EuroChem, alleging that the fertilizer giant failed to report billions of pounds of chemicals imported into the US between 2016 to 2019.
EPA’s Chemical Data Reporting (CDR) rule, promulgated under the Toxic Substances Control Act (TSCA), requires that manufacturers and importers report all chemicals manufactured or imported in volumes of 25,000 pounds or more per site per year. According to CEH, EuroChem failed to submit CDR reports by the 2021 reporting deadline for at least nine chemicals that allegedly exceeded this threshold during the 2016–19 reporting period.
The chemicals at issue include ammonium nitrate and ammonium sulfate, which CEH claims “cause respiratory irritation if inhaled and can lead to serious health problems with significant exposure,” according to a press release announcing the lawsuit. Another chemical, monoammonium phosphate, was allegedly imported in quantities of over 45 billion pounds in 2018 alone.
“Eurochem’s failure to report these imports undermines EPA’s efforts under TSCA to evaluate and address chemical risks,” the complaint reads. “It also prevents the public from tracking the movement of unsafe chemicals in commerce as well as monitoring their presence in communities”
The lawsuit is the latest in a series of actions brought by CEH, which systematically cross-references publicly available import data with CDR submissions to identify potential violations. According to the press release, CEH has settled with fourteen companies to date over their CDR omissions.
Chemium Settlement
In the press release, CEH also notes that it recently reached a settlement with Chemium International Corporation, a Texas-based chemical supplier, for similar alleged CDR violations. According to CEH, Chemium submitted CDR reports to EPA for eight chemicals imported between 2016 and 2019 and agreed to conduct an internal audit.
A post discussing another recent CEH CDR settlement, with Wego Chemical Group, can be found here.
Oregon Defends Packaging EPR Program, Argues Court Lacks Jurisdiction
/in EPR, State PolicyOregon Environmental Quality Commission (EQC) officials are asking a federal court to dismiss a challenge to the state’s extended producer responsibility (EPR) law and implementing regulations, arguing that the court lacks subject-matter jurisdiction.
The motion to dismiss, filed December 22, 2025, comes after the plaintiff, the National Association of Wholesaler-Distributors (NAW), asked the District Court for the District of Oregon to halt the program on November 24, 2025.
According to the defendants, the Eleventh Amendment bars NAW from bringing suit against EQC officials. While an exception to sovereign immunity exists for suits seeking prospective injunctive relief, the defendants contend that the named officials do not fall within the exception because they do not directly enforce the law.
“Absent allegations that EQC has an enforcement role or is continuously engaging in some activity that violates federal law, Plaintiff has not and cannot establish that the Ex parte Young exception should apply to the EQC Defendants,” the motion reads.
Enforcement authority, the defendants contend, rests with Oregon’s Department of Environmental Quality (DEQ), while EQC’s role is limited to promulgating administrative rules that “guide DEQ in its…administration” of the program. Although both EQC and DEQ were named in NAW’s original complaint, the association removed the agencies as defendants in an amended complaint filed October 27, 2025.
The defendants also argue that the Eleventh Amendment precludes NAW’s state-law claims from being heard in federal court.
Oregon’s packaging EPR program, which launched July 1, 2025, is the first such program to take effect nationwide. Many of its obligations are currently fulfilled by a single producer responsibility organization (PRO), Circular Action Alliance (CAA), though DEQ is authorized to approve additional PROs.
Last month, the Small Business Administration’s Office of Advocacy called for the federal government to preempt the program, citing concerns about interference with interstate commerce, the state’s delegation of authority to CAA, and the confidential methodologies used by CAA to calculate producer fees.
Merits Arguments
NAW raises similar concerns in its amended complaint, arguing that the program “produces unreasonable, arbitrary, and crushing burdens, including on wholesalers and distributors who are essential to moving products from manufacturers to Oregon consumers,” in part due to the delegation of “essential regulatory authority to a private, third-party organization.” CAA “has been granted wide discretion to apply a confidential methodology for setting fees, to establish other criteria and incentives for certain producers, and to penalize producers of certain materials,” NAW contends.
NAW alleges several constitutional violations. After contesting the court’s jurisdiction, the defendants’ motion to dismiss addresses each, arguing that all fail to state a plausible claim for relief.
First, the motion challenges NAW’s dormant Commerce Clause claim, asserting that the program does not discriminate against interstate commerce. “Increased compliance costs, even if borne largely by out-of-state businesses, do not amount to discrimination,” the defendants argue. Nor, they add, does the program “establish a substantial or an excessive burden on interstate commerce, regardless of whether it is compared to the putative local interests.”
The defendants also contend that the program does not have impermissible extraterritorial effects because it “does not force any producer to make any product or packaging design, sourcing, or distribution decisions.”
The motion next addresses NAW’s unconstitutional conditions claim, which alleged that producers are compelled to surrender “freedom of contract and due process protections” when joining CAA. In response, the defendants note that the law allows NAW’s members to form their own PRO, arguing that participation in CAA is a matter of choice.
NAW further argues that delegating fee-setting authority to CAA violates its members’ procedural due process rights. The defendants counter by pointing to statutory safeguards that provide “opportunity for public input and continuing DEQ oversight” of the fees program. These include DEQ approval of PRO program plans and fee methodologies, as well as annual reporting requirements.
Finally, the motion argues that Oregon has a rational basis for exempting small producers and does not unlawfully discriminate between mid-sized and large producers, rebutting NAW’s equal protection claim.
The case is National Association of Wholesaler-Distributors v. Feldon, 25-cv-1334 (D. Or.), filed July 30, 2025.
First TSCA CBI Claims Will Expire in 2026—Companies Should Prepare Now
/in CBI, EPA, TSCACompanies with confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) should mark their calendars—prompt action may soon be required to maintain their claims. CBI claims asserted under amended TSCA will begin to expire in June 2026, and submitters must reassert their claims prior to expiration to prevent the public disclosure of commercially sensitive chemical information.
Update – January 7, 2026
On January 6, 2026, EPA published a Federal Register notice describing its intended process for implementing the statutory requirements governing CBI expirations and reassertions. This post has been updated to reflect new information provided by EPA in the notice.
The notice states that “EPA expects to provide further guidance [on CBI claim expirations], to solicit and answer questions, and potentially to host a webinar with information on notices of expiration and instructions for requesting extensions.”
When Will My CBI Claim Expire?
In 2016, Congress passed the Lautenberg Amendments to TSCA, which overhauled the statute’s CBI provisions. Under amended TSCA, most CBI claims—including claims for specific chemical identities—expire after ten years. As a result, many CBI claims asserted in 2016 will expire in 2026.
Under TSCA section 14(e)(1)(B), the ten-year protection period starts when a submitter asserts a claim, not when the submitter provides substantiation. Although substantiation is generally required at the time a claim is submitted, some submitters may have provided substantiation at a later date. This is especially true of claims that were submitted soon after the statute was amended. Submitters should therefore calculate expiration dates based on the date of assertion and note that claims might expire before the ten-year anniversary of their substantiation.
Expiration dates for some chemical identity CBI claims are available on the TSCA Inventory.
Update: EPA’s January 2026 notice clarifies that claims for specific chemical identities expire ten years from the date the first claim for that substance was asserted. If a chemical identity is claimed as confidential by multiple companies, this may result in a claim expiring less than ten years after it was asserted by a subsequent submitter.
For example, if Company A asserted a CBI claim for a chemical identity in 2016, and Company B asserted a CBI claim for the same chemical identity in 2019, CBI protection for the chemical identity would expire in 2026—even though only seven years have passed since Company B asserted its claim.
At present, it is unclear whether EPA would provide CDX notice of the impending expiration to both companies or only to the submitter that asserted the first claim. (Notice procedures are discussed below.)
What Do I Have to Do to Reassert and Re-Substantiate my CBI Claim?
Submitters may extend CBI claims for subsequent ten-year periods by submitting a request for extension to EPA. Section 14(e)(2). A request for extension must include substantiation and must be submitted to EPA at least 30 days before the claim is set to expire. Section 14(e)(2)(B)(i).
The substantiation requirements for a request for extension are the same as those that apply when asserting a claim initially. Under 40 CFR 703.7(g), submitters have the option to either submit new substantiation or rely on substantiation that was provided with the initial submission, certifying that the substantiation remains true and correct.
The CBI regulations require that claims be submitted through EPA’s Central Data Exchange (CDX). 40 CFR 703.5(f). In a response to comments document from the 2023 rulemaking that developed those regulations, the agency indicated that it anticipated developing a new CDX reporting form for submitters to reassert expiring claims. EPA’s CBI FAQ page, last updated in August 2025, continues to signal that an electronic reporting tool is planned.
In some cases, submitters may find that it is no longer necessary to maintain a CBI claim, or that the subject information is no longer eligible for CBI protections because it has become publicly available.
Update: In the January 2026 notice, EPA confirmed that it is currently developing a CDX reporting tool for requests for extension and expects to have the tool in place before the first claims expire. If implementation is delayed, EPA instructs submitters to postpone submitting requests for extension until the tool becomes available. The notice states that “EPA will not release any information subject to expiring claims until the notice and review requirements of section 14(e) are met.”
On a CBI expiration guidance webpage updated January 5, 2026, EPA added that it will not disclose information covered by a timely request for extension if the agency does not complete its review of the request before the expiration date. Under section 14(g)(1)(D), “the information will continue to be protected until the review is complete and any applicable appeal period under section 14(g) has elapsed,” the webpage states.
Will EPA Provide Advance Notice of My CBI Claim’s Expiration?
Section 14(e)(2)(A) provides that EPA “shall provide to the person that asserted the claim a notice of the impending expiration of the period” at least sixty days before a CBI claim expires. EPA will address this provision by publishing a list of TSCA submissions with expiring confidentiality claims on its website or other appropriate platform. 40 CFR 703.5(h)(3). Submissions must be added at least 60 days prior to expiration, along with instructions for reasserting and substantiating expiring claims.
In the response to comments document, EPA asserted that “Section 14(e) does not specify that EPA must provide individual notice of claim expiration.” Nonetheless, during the rulemaking the agency stated its intent to provide individual notice via CDX, which is authorized under 40 CFR 703.5(h)(2).
EPA’s CDX notification system is imperfect. Submitters may miss CDX notifications if the contact information associated with CBI claims is outdated. Companies should therefore review their TSCA submissions to assess whether contact information is current. Companies may need to contact the CDX Helpdesk for assistance gaining access to submissions made by former employees. This process may take several weeks if a company needs to create a new CDX account and get that account connected to filings submitted by a former employee. If the original filing was submitted by an entity that was not part of the company at the time of the submission, additional steps may be required, such as filing a notice of transfer. 40 CFR 703.5(h)(1). That said, EPA’s response to comments document indicated that companies will not need access to the original CDX submission to reassert claims.
In general, TSCA requires EPA to provide actual notice before disclosing information claimed as CBI, such as information covered by a denied CBI claim or a denied request for extension. Section 14(g)(2). However, the statute makes an exception for expired CBI. Where no timely request for extension is submitted, TSCA does not require EPA to provide actual notice before disclosing expired CBI, provided EPA has given the 60-day notice described above. Section 14(g)(2)(C)(iii)(II). As a result, a company that does not receive a CDX notification and does not monitor EPA’s list of expiring claims may not learn that a CBI claim has expired until after the covered information has been publicly disclosed.
Update: EPA’s January 2026 notice reiterates that the agency anticipates providing notice of impending CBI claim expirations via CDX, “[a]lternatively, or in addition” to the website listing. The notice also reflects EPA’s view that publication of the website listing satisfies the 60-day notice requirement in section 14(e)(2)(A). Whether a court would agree that a website posting—as opposed to personal notice—is legally sufficient remains an open question.
The notice further affirms that a “notice of disclosure [is] not required where a CBI claim has expired and no person submitted a timely extension request following [a] timely notice of expiration.” EPA also observes that some companies may have submitted information claimed as CBI outside of CDX, such as paper filings predating electronic filing requirements or physical material provided to EPA pursuant to a TSCA subpoena or inspection.
Considering that:
It is highly advisable that companies regularly review EPA’s list of expiring claims, rather than relying solely on CDX notifications, to avoid inadvertent expiration of CBI protections.
Are Any CBI Claims Exempt from the Reassertion and Re-Substantiation Requirements?
Pursuant to section 14(e)(1)(A), no action is necessary to maintain CBI claims that are exempt from substantiation and review according to sections 14(c)(2) and 14(g). These include claims for specific information describing manufacturing processes, marketing and sales information, information identifying suppliers or customers, and specific production volumes, among others.
This post is for informational purposes only and does not constitute legal advice.
EPA Formalizes “Compliance First” Enforcement Framework
/in Enforcement, EPAOn December 5, 2025, the acting assistant administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a “compliance first” directive to the agency’s enforcement staff. A memo detailing this directive was issued to personnel both at headquarters and in regional EPA offices. The memo, obtained by POLITICO’s E&E News, signals a paradigm shift in the agency’s enforcement philosophy.
“The primary focus for the Agency in all inspection, investigation, EPA enforcement, state/tribal enforcement coordination, and compliance assistance activities must be on achieving and ensuring timely compliance,” the memo reads. OECA adds that compliance should be attained in “the most efficient, most economical, and swiftest means possible, while ensuring that our actions align with the clearest, most defensible interpretations of our statutory and regulatory mandates.”
OECA outlines six factors that will underpin the agency’s enforcement philosophy:
Key Changes to Enforcement Practice
Several provisions in the memo mark notable departures from previous practice.
First, EPA inspectors and enforcement staff must now immediately elevate concerns raised by regulated entities about how the agency has applied a statute or regulation in enforcement actions at their facilities. Decisions on how to proceed will be made at the national level, with regional counsel required to consult with the relevant Office of General Counsel (OGC) and OECA offices.
With respect to injunctive relief—court orders to compel or cease specific actions—the directive substantially narrows EPA’s authority. Approval from the OECA assistant administrator will now be required for injunctive relief that falls outside “clear regulatory or statutory requirements,” which will only “be appropriate in limited, case-specific circumstances.” The memo rescinds the agency’s earlier policy—issued in 2021—that allowed for more expansive injunctive relief. Under the 2021 policy, EPA could use tools such as advanced monitoring, third-party auditing and monitoring, electronic reporting, and enhanced public reporting. These tools are now generally discouraged.
In addition, the directive tightens settlement procedures. The memo explains that agency personnel must now obtain approval from the OECA assistant administrator prior to initiating negotiation on any proposed settlement that could include mitigation or a stipulated remedy until additional guidance is issued. Similarly, the memo prohibits the use of supplemental environmental projects (SEPs) in settlements until further guidance is developed.
Finally, in the memo EPA states that it plans to develop consolidated criteria across all media to categorize violations and assign appropriate enforcement responses to improve consistency across programs and regions. OECA says that existing enforcement response policies, “together with the best reading of each requirement,” will inform the basis of the consolidated criteria. The memo also notes that EPA “must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics.”
Implications for Industry
OECA’s compliance first framework—particularly its emphasis on achieving timely compliance through efficient and economical means—signals renewed support for industry self-policing.
The memo expressly directs enforcement staff to “promote voluntary compliance through self-reporting and voluntary audits.” That instruction, coupled with the memo’s focus on open communication, early issue elevation, and restrained use of injunctive relief, suggests an enforcement environment more receptive to self-identified violations that are promptly disclosed and corrected.
For companies that manufacture chemicals or use chemicals to produce consumer, commercial, or industrial products, self-auditing offers an opportunity to establish a clear compliance baseline and move potential violations off of balance sheets. EPA’s Audit Policy, discussed below, provides substantial protection to entities that systematically discover, disclose, and correct violations.
Given OECA’s new approach, companies facing compliance questions should strongly consider whether self-auditing and voluntary disclosure can help manage enforcement risk while demonstrating good-faith compliance efforts.
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EPA’s long-standing Audit Policy, last revised in 2000, remains the primary mechanism for obtaining credit for self-auditing. Under the policy, regulated entities that systematically discover, disclose, and correct violations may be eligible for significant enforcement incentives, including:
More information on EPA’s Audit Policy can be found on EPA’s website.
Third Circuit Affirms Lanham Act Liability for False “Made in USA” Claims
/in Made in USAOn December 10, 2025, the Third Circuit affirmed a New Jersey district court’s finding that Albion Engineering Co. violated the Lanham Act by making false and misleading “Made in the USA” claims in connection with certain caulking guns, as well as the entry of a permanent injunction and an award of disgorgement.
Competitor Newborn Bros. Co., Inc. filed suit in 2012, alleging that Albion partially manufactured certain caulking guns overseas while making US-origin claims. Albion printed statements such as “USA Manufacturer and Designer” and “Made in USA” on some imported products and advertised that all of its products were “designed and manufactured in the USA” and “Made in America.” Newborn, however, also made potentially problematic US-origin representations in connection with its own imported caulking guns.
After 30 days of trial testimony spanning seven years, the district court held Albion liable for false advertising under the Lanham Act, entered a permanent injunction, and awarded Newborn more than $2 million in disgorgement, reducing the award under the unclean hands doctrine based on Newborn’s own conduct. Both parties appealed. The Third Circuit affirmed the district court’s rulings in all respects.
False Advertising and Permanent Injunction
Albion challenged several aspects of the false advertising holding, arguing that Newborn failed to present consumer survey evidence demonstrating deception and lacked evidence that any deception was material. The Third Circuit rejected these arguments, holding that testimony and expert evidence may establish deception and materiality without a consumer survey. The court also affirmed the finding that Newborn suffered injury in the form of diverted sales.
Albion additionally challenged the permanent injunction, which ordered Albion to send letters to recent distributors, request returns of mislabeled products, display notice of the litigation, and provide detailed country-of-origin information until it receives Customs and Border Patrol (CBP) guidance. Even if Albion’s current practices are compliant with the Lanham Act, the district court’s conclusion that old products and marketing materials was sufficient to warrant a permanent injunction, the panel held.
The Third Circuit likewise upheld the district court’s mandate regarding country-of-origin disclosures. Albion had previously sought CBP guidance on an adjacent issue and was informed that the country of origin would not be the United States, but it did not seek a subsequent clarifying ruling. “On this record, we cannot conclude that the District Court abused its discretion,” the panel stated.
Unclean Hands
Newborn, on the other hand, principally challenged the district court’s application of the unclean hands doctrine, which decreased the disgorgement award. The lower court focused on Newborn’s use of a “Newborn U.S.A.” trademark on caulking-gun advertisements without reference to its US warehouse facilities to justify its application. Newborn also used a logo incorporating its name within an outline of the United States and listed US-based offices and warehouses without disclosing that its caulking guns were manufactured overseas.
While these practices may not necessarily have caused consumer confusion or injury, they are sufficiently similar to Albion’s violations and “transgress[ed] equitable standards of conduct,” the court held. Accordingly, the panel found that the reduction of Newborn’s recovery fell within the district court’s discretion.
The court also rejected Newborn’s challenge to Albion’s expert witness, who testified that repeat purchasers of Albion products would be aware of their overseas origin. The panel held that this opinion fell within the expertise of the economist, who held a Ph.D.
The case is Newborn Bros. Co., Inc. v. Albion Engineering Co., Nos. 24-1548 & 24-3046 (3rd Cir.), filed Nov. 4, 2024.