Class Action Against Coca-Cola for “100% Recyclable” Claims Advances

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A proposed class action against Coca-Cola and other companies selling bottled water can proceed after the plaintiffs provided survey results indicating that consumers may be misled by Coca-Cola’s recyclability claims, the Northern District of California ruled in the case Swartz v. The Coca-Cola Co., No. 3:21-cv-04643.

Crucial to the case are the Federal Trade Commission’s Green Guides, which provide guidance for environmental marketing claims and are codified into California law.  The Green Guides allow marketers to make unqualified recyclable claims “if the entire product or package, excluding minor incidental components, is recyclable” by facilities available to “at least 60 percent” of Californians.

The plaintiffs initially alleged that the defendants’ “100% Recyclable” claims are false and misleading because most of the bottles are not recycled in practice.  The judge rejected that argument, stating that reasonable consumers would not understand the claims “to mean that the entire product will always be recycled.”  The plaintiff’s next complaint placed greater emphasis on the bottles’ caps and labels, which are allegedly not recyclable.  However, the court found inadequate factual support for their claims, which were also undermined because bottle caps and labels constitute minor components under the Green Guides.

The plaintiffs’ newest complaint overcomes those shortfalls, Judge James Donato ruled on April 8, 2024.  The survey results indicate that consumers understand the defendant’s claims to mean the entire bottle (including bottle caps and labels) are recyclable, and the defendants “expressly qualify” their recyclability as “100%.”  As a result, the plaintiffs can plausibly allege that “these representations to consumers are different from” unqualified claims protected by the Green Guides, he said.

The court also determined that there was sufficient factual support for the plaintiffs’ deception claims to move forward.  Because the defendant’s product labels are “disposed of as refuse” by facilities responsible for over 40% of the relevant type of bottle recycling in California, it is plausible that the “defendant’s products are not capable of being ‘100%’ recycled by plants in California,” the court ruled.

The lawsuit consolidates actions brought separately by consumers and the Sierra Club.  In addition to Coca-Cola, the suit names BlueTriton Brands and Niagara Bottling as defendants.  Between the three companies, water bottles are sold under the brand labels Dasani, Deer Park, Poland Spring, Niagara, Kirkland Signature, and others.

 

EPA Grants Petition to Address PFAS Created by Plastic Fluorination

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On July 10, 2024, EPA granted a citizen petition from environmental groups encouraging EPA to take Toxic Substances Control Act (TSCA) section 6 action for three PFAS substances produced during the fluorination of plastic containers.

The petition alleges that the three PFAS—PFOA, PFNA, and PFDA—pose a variety of serious human health hazards, even at extremely low exposures.  The petition cites EPA’s December 2023 response to significant new use notices filed by Inhance Technologies (“Inhance”), a fluorination company, for substances including PFOA, PFNA, and PFDA.  As discussed in a previous blog post, EPA found that Inhance’s production of the three PFAS presents an unreasonable risk and ordered Inhance to stop producing the chemicals under TSCA section 5, which allows EPA to regulate new substances and significant new uses.

Inhance challenged EPA’s order.  In March, the Fifth Circuit ruled that EPA could not regulate Inhance under TSCA section 5 because Inhance’s fluorination process had been in place for decades; a blog post on the decision can be found here.  However, the court noted that EPA is free to regulate Inhance’s fluorination process under section 6, which allows EPA to restrict existing substances.  Unlike section 5, section 6 requires EPA to conduct a cost-benefit analysis that considers a substance’s benefits and what the economic consequences of regulation would be.

In its letter granting the petition, EPA said that the agency will initiate “an appropriate proceeding under TSCA Section 6 associated with the formation” of the three PFAS during plastic container fluorination.  As part of the proceeding, “EPA intends to request information, including the number, location, and uses of fluorinated containers in the United States; alternatives to the fluorination process that generates PFOA, PFNA, and PFDA; and measures to address risk from PFOA, PFNA, and PFDA formed during the fluorination of plastic containers.”

EPA Proposes to Restrict Use of N-Methylpyrrolidone

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Multiple occupational uses of n-methylpyrrolidone (NMP) would be banned and others would be restricted under a proposed rule published by EPA on June 14, 2024.  The proposed rule follows EPA’s 2020 determination that NMP presents an unreasonable risk to human health due to health effects including fetal death and reduced fertility.

According to the proposed rule, NMP is a widely used solvent with applications in the manufacturing of lithium-ion batteries, “semiconductors, polymers, petrochemical products, paints and coatings, and paint and coating removers.”  2020 Chemical Data Reporting rule data indicates that total annual production ranged from 100–250 million pounds from 2016 to 2019, EPA says.

The proposed rule would ban the manufacture, processing, distribution, and use of NMP for industrial and commercial use in lubricants, anti-freeze products, automotive care products, and cleaning products, among others.  All industrial and commercial uses not prohibited would be subject to a workplace chemical protection program (WCPP) to minimize direct dermal contact with NMP through incorporation of the hierarchy of controls.  Where controls are insufficient, EPA proposes to require implementation of a PPE program.

The proposed rule would also implement prescriptive controls for certain industrial and commercial uses, such as capping the allowed concentration of NMP in industrial and commercial paints and stains at 45%. Similar concentration maximums would apply to a handful of consumer products, including adhesives.

Although no consumer products would be banned, EPA proposes to implement container size limitations and labelling requirements for some consumer uses, including paint removers, paints, automotive care products, and cleaning products.

EPA proposes that the bans take effect under a staggered schedule, varying from one to two years after publication depending on whether an entity is a manufacturer, processor, distributor, or user of NMP.  Private entities subject to WCPP requirements would have one year to establish the program, and consumer product container size limitations and labelling requirements would also take effect after one year.

Comments on the proposed rule are due on July 29, 2024.

OEHHA Proposes Additional Changes to Prop 65 Warning Requirements

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On June 13, 2024, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice proposing changes to Proposition 65’s warning requirements.  The proposed changes revise proposed amendments to Proposition 65 published in October 2023, discussed in a previous blog post.

If implemented, the June 2024 proposal would revise the October 2023 proposal by:

  • Delaying the required use of the new short-form warning content from two years to three years after the amendments take effect.
  • Abandoning many of the proposed changes for internet purchases and catalogues. For example, the June 2024 proposal removes the October 2023 proposal’s requirement that internet retailers provide a warning on the shipped product (in addition to the online warning already required).
  • Including a 60-day grace period for internet retailers to update their online short-form warnings after they are notified that a product will have new warning content.

A document showing the proposed changes to the October 2023 proposal can be found here.  Comments on the proposed changes are due June 28.

Proposition 65, officially known as the as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses in California to warn customers when products contain chemicals known to the state to cause cancer or reproductive harm.

EPA Tightens Emissions Standards for Chemical Plants

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The synthetic organic chemical manufacturing industry and some polymer manufacturers will face more stringent emissions limitations under a final rule published by EPA on May 16, 2024.  The rule primarily targets emissions from chloroprene and ethylene oxide, which are linked to cancer in humans.

The final rule amends the National Emissions Standards for Hazardous Air Pollutants and New Source Performance Standards for these facilities, which number about 200.  Emissions limitations include requirements to improve flare efficiency and stronger standards for heat exchange systems, process vents, and storage vessels.

According to an EPA fact sheet, covered facilities “must meet risk-based requirements for reducing [ethylene oxide] within two years after the rule becomes effective and must meet risk-based standard for reducing chloroprene within 90 days after” the rule takes effect July 15, 2024.

The final rule also mandates fenceline monitoring for facilities that use, produce, store, or emit chloroprene, ethylene oxide, benzene, 1,3-butadiene, ethylene dichloride, or vinyl chloride.  Neoprene production facilities will be subject to lower action levels for chloroprene and shorter compliance deadlines than other facilities.

Previous EPA regulations had included general exemptions from emission control requirements during periods of startup, shutdown, and malfunction.  The final rule eliminates those exemptions, which courts have deemed impermissible under the Clean Air Act.

In a press release, EPA stated that the final rule will reduce ethylene oxide “and chloroprene emissions from covered processes and equipment by nearly 80%,” reducing “the number of people with elevated cancer risk by 96% in communities near plants that emit” those chemicals.

Maine PFAS Law Triggers Class Action Against BIC in California

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Customers in California have filed a class action lawsuit against BIC USA, Inc. (“BIC”), a razor manufacturer, over allegations of PFAS use discovered through BIC’s compliance with a Maine PFAS reporting law.

In 2021, Maine enacted legislation requiring companies to disclose whether their products contain intentionally added PFAS by January 1, 2023.  Although a subsequent law extended this deadline to 2025, some companies had already submitted PFAS information to Maine’s Department of Environmental Protection.  According to the complaint, a Freedom of Access Act request by a public advocacy group revealed that BIC had disclosed the use of PFAS as a lubricant in its razor blades.

The plaintiffs argue that they would not have purchased BIC razors for the price they paid had they known they contained PFAS.  Without a disclosure to the contrary, the complaint asserts that “[n]o reasonable customer would expect that shaving razors would contain dangerous PFAS, which are indisputably linked to harmful health effects in humans.”

The lawsuit alleges violations of California’s Unfair Competition Law and False Advertising Law, among other claims.  The plaintiffs seek injunctive relief, compensatory damages, and punitive damages.

The Maine legislature substantially revised the state’s PFAS reporting requirements in April, discussed in a previous blog post.  Under the amended law, reporting requirements will only apply to “currently unavoidable uses” starting in 2032.

The case is Butler v. BIC USA Inc., N.D. Cal., No. 4:24-cv-02955, filed May 15.

Maine Revises PFAS in Products Legislation

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Maine’s reporting requirements for products containing PFAS will be narrowed, and incremental category-specific bans will be adopted under a new law enacted April 16, 2024.  The law, LD 1537, revises landmark 2021 legislation that implemented a general ban on the sale of products containing intentionally added PFAS starting in 2030 and mandated reporting in the interim.

Narrowed reporting requirements

The new law scraps the old law’s “general notification requirement,” which would have required manufacturers to report information on products containing intentionally added PFAS by January 1, 2023 (later delayed to 2025).  Under LD 1537, reporting will only be required for “currently unavoidable uses” beginning in 2032.

As was the case previously, Maine’s Department of Environmental Protection will be tasked with determining what uses are currently unavoidable.  The department solicited requests for proposals from manufacturers seeking currently unavoidable use determinations beginning in January of this year.  However, in light of the new law, the department says on its website that it anticipates currently unavoidable use determinations to begin in 2025.

New timeline for banned products

LD 1537 pushes back the general sales prohibition for products containing intentionally added PFAS from 2030 to 2032.  However, the new law introduces many product category-specific bans.  Certain categories will now be subject to more aggressive deadlines, and a few will not be banned until 2040.

The new sales bans for products containing intentionally added PFAS are as follows:

  • Effective January 1, 2026: cleaning products, cookware, cosmetics, dental floss, juvenile products, menstruation products, textile articles (excluding outdoor apparel for extreme wet conditions and textiles for watercraft, aircraft, or motor vehicles), ski wax, and upholstered furniture.
  • Effective January 1, 2029: artificial turf and outdoor apparel for severe wet conditions (unless it includes a PFAS disclosure).
  • Effective January 1, 2032: all other products containing intentionally added PFAS except for currently unavoidable uses and those subject to a ban in 2040.
  • Effective January 1, 2040: HVAC equipment, refrigeration equipment, refrigerants, foams, and aerosol propellants.

LD 1537 additionally excludes certain product categories from all requirements, including firefighting foams, medical devices/drugs, veterinary products, motor vehicles/motor vehicle equipment, watercraft, and semiconductors.

Other changes

Under the new law, products that do not contain intentionally added PFAS are still subject to the above bans if they are sold in a container that contains intentionally added PFAS.  Importantly, this includes fluorinated containers.

LD 1537 also increases the minimum number of employees for a manufacturer to be subject to reporting requirements from 26 to 101.

More information on LD 1537 can be found at Maine’s Department of Environmental Protection website.

OSHA Revises Hazard Communication Standard

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On May 20, 2024, OSHA published a final rule revising the Agency’s Hazard Communication Standard (HCS), which requires that workers be informed of chemical hazards.  The rule aligns the HCS with Revision 7 (Rev. 7) of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS), which is updated biennially by the United Nations.

The 318-page final rule includes special labelling provisions for small containers and mandates use of prescribed concentration ranges in safety data sheets (SDSs) when a chemical concentration is claimed as confidential.  The final rule also revises the definitions and classification considerations for various health hazards, adds a new hazard class (desensitized explosives) and three new hazard categories, and makes a number of modifications to the formatting and language that must be used on labels and SDSs.

Though the rule was largely finalized as proposed, OSHA amended one provision in response to industry pushback.  In the proposed rule, OSHA included language requiring that chemical manufacturers and importers evaluate chemical hazards “under normal conditions of use and foreseeable emergencies.”  Many commenters argued that the provision would be overly burdensome, requiring manufacturers to anticipate all possible downstream uses.  In response, OSHA eliminated the language, instead mandating that hazard classifications include “any hazards associated with the chemical’s intrinsic properties,” such as changes to the chemical’s physical form or chemical reaction products associated with reasonably anticipated uses.

The final rule is effective July 19, 2024, and contains staggered compliance deadlines.  Chemical manufacturers, importers, and distributors evaluating substances must update labels and SDSs within 18 months and must make any necessary updates to alternative workplace labelling, hazard communication programs, and trainings within 24 months.  The corresponding compliance dates for mixtures are 36 months and 42 months, respectively.  However, OSHA is not requiring chemicals that have been released for shipment to be relabeled.

GHS Rev. 7 was published in 2017.  Though GHS Rev. 8 was published before OSHA released the proposed rule, OSHA opted to align the HCS with Rev. 7 in large part because major trading partners (including Canada, Europe, and Australia) have adopted or are planning to adopt Rev. 7.  However, OSHA integrated some elements of Rev. 8 that the Agency believes will better protect workers, such as an updated method of classifying skin corrosion/irritation that expands use of non-animal test methods.

The final rule marks the first major update to the HCS since 2012, when the Agency adopted GHS Rev. 3.  A previous Verdant Law blog post on the proposed rule can be found here.

EPA Finalizes Changes to TSCA Risk Evaluation Procedures

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On May 3, 2024, EPA published a final rule amending the procedures for chemical risk evaluations under the Toxic Substances Control Act (TSCA).  The final rule is largely unchanged from the proposed rule, discussed in a previous Verdant Law blog post.

A key change in the final rule is the requirement that risk determinations end in a single risk determination rather than use-by-use determinations.  EPA previously referred to this approach as a “whole chemical” approach.  However, to address concerns that a single determination of unreasonable risk would mislead the public into believing that all uses present an unreasonable risk, EPA will no longer use the term “whole chemical.”  EPA additionally committed to “identify[ing] the conditions of use that significantly contribute” to the single determination.

Another important change reverts an EPA interpretation of TSCA to a previous interpretation.  EPA proposed that risk evaluations consider all conditions of use in 2017, but determined that the agency had discretion over conditions of use in the final regulation.  However, due to the Ninth Circuit’s 2019 decision in Safer Chemicals, Healthy Families v. EPA, the final rule now mandates the inclusion of all conditions of use in risk evaluations.

Other changes include the removal of the definitions of “best available science” and “weight of the scientific evidence” to allow the agency greater “flexibility to quickly adapt to and implement advancing scientific practices”; EPA’s decision to no longer assume use of personal protective equipment when calculating occupational exposure; and identification of “overburdened communities” as a potentially exposed or susceptible subpopulation.

The final rule, effective July 2, 2024, will apply to ongoing risk evaluations “only to the extent practicable.”

EPA Sets Drinking Water Standards for PFAS

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Concentrations of six PFAS substances in drinking water will be regulated for the first time under new drinking water standards published by EPA on April 26, 2024.

The final rule sets individual maximum contaminant levels (MCLs) for PFOA and PFOS at 4 parts per trillion (ppt).  The agency found no evidence that any level of exposure to either substance is safe, setting aspirational maximum contaminant level goals (MCLGs) of 0 ppt for both.

The final rule also sets individual MCLs (and MCLGs) of 10 ppt for PFHxS, PFNA, and HFPO-DA (known by the trademark GenX).  Mixtures containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS are subject to a hazard index-based limit.

Public water systems are required to conduct initial monitoring by April 2027, be compliant with the MCLs by April 2029, and conduct regular compliance monitoring.  Water systems must include detected PFAS in their annual reports and notify the public if a MCL violation has been detected.

EPA characterizes the regulation as flexible.  The final rule allows reductions in initial monitoring for most small water systems, using previously collected drinking water data to satisfy initial monitoring requirements, and reduced compliance monitoring based on sampling results.  Additionally, the final rule does not dictate how PFAS be removed.

In a press release, EPA said it expects that approximately 6-10% of water systems subject to the final rule may need to take action to meet the standards, reducing PFAS exposure for around 100 million Americans.

A previous Verdant Law blog post on the proposed drinking water standards can be found here.