Save the Date: Exciting Upcoming ABA Program on Nano Governance


For readers interested in the current state of play regarding governance of nanotechnology, the ABA Pesticides, Chemical Regulation and Right-To-Know Committee, along with other committees listed below, is organizing the following half-day event.



January 27, 2011



Please mark January 27, 2011, on your calendar for an exciting program under development by the Pesticides, Chemical Regulation, and Right-to-Know Committee and the Science and Technology Section, Nanotechnology Committee. Program co-sponsors include the Young Lawyers Division Administrative Law and Environment Energy and Resources Law Committees and the Section on the Environment and Energy Resources, Environmental Disclosure Committee.

Program:  Nano Governance:  The Current State of Federal, State, and International Regulation

Date:  Thursday, January 27, 2011

Time:  1:00 – 5:30 p.m. (EST).  Networking reception immediately following.

Tentative Program Overview:

  1. The Federal Regulatory Outlook
  2. Beyond The Feds:  International/State Regulatory Programs and Strategies for Addressing Nanoscale Materials
  3. Perspectives from the Field


More details to follow shortly, but for questions on this tentative program, please contact Irene A. Hantman at

Also remember that the PCRRTK Committee web page provides you with access to valuable resource materials and analysis from past programs, newsletters, reports, and Practitioners E-reference documents covering a wide range of pesticide, chemical regulation, and right-to-know legal issues.  Please visit us at


EPA Requires Testing of 19 High Production Volume (HPV) Chemicals

TSCA/HPV Chemicals:

On January 7, 2011, EPA published a final rule under section 4(a)(1)(B) of theToxic Substances Control Act (TSCA), (15U.S.C. 2603(a)(1)(B)), requiring manufacturers, importers, and processors to test 19 high production volume (HPV) chemicals.  The rule, which takes effect on February 7, 2011, requires these persons to obtain screening level data for health and environmental effects and chemical fate, and then provide that data to the Agency.  The rule is one of a series of actions that EPA is taking to ensure that it has the data necessary to adequately review priority chemicals.  In addition, now that the Agency has issued a final test rule, any person (including those required to test) who exports, or intends to export, any of the 19 chemicals will be subject to the export notification requirements in 40 CFR part 707, subpart D.  The chemicals are listed below:


Chemical Name




1,3-Propanediol, 2,2-bis[(nitrooxy)methyl]-, dinitrate (ester)






2,4-Hexadienoic acid, (E,E)-


Phenol, 4,4′-methylenebis[2,6-bis(1,1-dimethylethyl)-




Ethanedioic acid


Methanesulfinic acid, hydroxy-, monosodium salt


Phosphorochloridothioic acid, O,O-diethyl ester




D-erythro-Hex-2-enonic acid, g-lactone, monosodium salt


D-gluco-Heptonic acid, monosodium salt, (2.xi.)-


C.I. Leuco Sulphur Black 1


Castor oil, sulfated, sodium salt


Castor oil, oxidized


Benzenediamine, ar,ar-diethyl-ar-methyl-


Alkenes, C12–24, chloro


Hydrocarbons, C > 4

The 19 chemicals were originally included in the voluntary High Production Volume (HPV) Challenge Program, which “challenged” companies to make health and environmental effects data publicly available on chemicals produced or imported in the United States in the greatest quantities.  HPV chemicals are classified as those chemicals produced or imported in the United States in quantities of 1 million pounds or more per year.  EPA has determined that HPV chemicals account for approximately 95% of total chemical production in the United States.  As of June 2007, companies sponsored more than 2,200 HPV chemicals, with approximately 1,400 chemicals sponsored directly through the HPV Challenge Program and over 860 chemicals sponsored indirectly through international efforts.  However, no data were provided for the 19 chemicals, making a mandatory test rule necessary.

More information on EPA’s HPV Challenge Program is available here.

Crocs Shoe Company Settles FIFRA Enforcement Action with EPA


On December 30, 2010, EPA announced a settlement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with Crocs, Inc., the company famous for its ubiquitous, colorful foam clogs.   EPA alleged that Crocs violated FIFRA by making unsubstantiated antimicrobial health claims on its website, in advertising, and on packaging for several styles of the Company’s shoes.   Pursuant to the settlement agreement, Crocs will remove the offending language and pay a $230,000 penalty.  The Company will undoubtedly incur significant additional expense to revise its advertising materials, field questions from distributors and worried customers, and take other steps necessary to ensure future compliance and help protect the Crocs brand.  A copy of the settlement agreement is available here.

This case is another unfortunate example of the relative ignorance of many consumer products companies about the application of FIFRA to consumer products treated with antimicrobials or other pesticides.  One would not normally consider shoes to be a pesticide product, but under FIFRA, they can be.  Making an antimicrobial public health claim about a product (usually because of a chemical applied to the product) is one of the easiest ways to make a cutting board, computer keyboard, etc., subject to FIFRA.  Many companies simply don’t understand this, or they mistakenly think their products qualify for the “treated articles” exemption and therefore they don’t need to worry about FIFRA.   (More on the “treated articles” exemption in a minute.)  EPA’s enforcement docket is littered with past examples of such mistakes.

Simply stated, products that claim to kill or repel bacteria or germs are considered pesticides under FIFRA.   FIFRA requires companies to register pesticide products with EPA before selling, distributing, or making public claims about their ability to control germs or pathogens.   The registration process can be time-consuming and expensive because EPA will not register a pesticide until it has been shown, through testing, not to pose an unreasonable risk when used according to the label’s directions. 

Companies often aren’t aware of the scope of the registration requirement.  Others are aware of it, but  believe (mistakenly) that their products qualify for the “treated articles” exemption in 40 CFR 152.25(a).  Eligibility for this exemption is not as straightforward as it might seem.  In a nutshell, the exemption requires: (1) the incorporated pesticide to be registered for use in or on the article and (2) the sole purpose of the treatment to be protection of the article itself.  Implied or explicit public health claims for protection against bacteria, fungi, viruses, or other pathogens (e.g., “antibacterial”) are prohibited since they show that treatment was not solely for protection of the article itself.  Companies commonly make claims broader than those allowed or they fail to confirm that the registration covers treatment of their specific type of product.  The result is a violation of FIFRA with all the pain and expense that entails.

Where does this leave a consumer products company wanting to capitalize on society’s germ phobia?  Well, before succumbing to the sirens’ song from Marketing or Sales about the new marketing opportunities, usually an in-house counsel, product steward, or other EH&S professional inquires about FIFRA compliance.   If shrugs or blank stares are returned, that person will arrest the momentum and probe the issue further.  (Disclaimer:  This is a practical observation and not legal advice.)  EPA has helpful guidance , and other information is available on its website, here and here.     

DTSC Delays Adoption of its Green Chemistry Regulations for Safer Consumer Product Alternatives

Green Chemistry Regulations:

After nearly two years of multi-stakeholder collaborative efforts, the California Department of Toxic Substances Control (DTSC) failed to timely adopt its Safer Consumer Product Alternatives Regulations (SCPA Regulations), a key component of California’s Green Chemistry Initiative.  The regulations would have represented a new paradigm in chemicals and products regulation, providing a strong incentive for manufacturers to market products that are “benign by design” through the use of “safer” chemicals and other techniques.  The enabling legislation, AB 1879, required DTSC to complete the rulemaking by January 1, 2011, but that did not happen.  The Department’s parent agency, the California Environmental Protection Agency (Cal-EPA), decided to have DTSC delay adoption in the face of substantial criticism of last-minute changes the Department proposed in November.   No deadline for completing the rulemaking has been announced publicly.

After receiving comments on its first regulatory proposal, released in September, DTSC made substantial changes in November and released them for a 15-day comment period extending over the Thanksgiving holiday.  The changes largely streamlined and clarified the requirements and removed potential impediments to innovation.  However, critics accused DTSC of employing “bait-and-switch” tactics, caving to industry pressure, and violating the California Administrative Procedures Act.   In the face of such criticism, Cal-EPA’s Secretary for Environmental Proection, Linda S. Adams, decided — in consultation with key legislators and the Governor’s Office — to violate the statutory deadline.   She announced her decision in a December 23, 2010 letter to Assembly Member Mike Feuer, the primary author of AB 1879.  The letter states that DTSC will reconvene its Green Ribbon Science Panel — a multidisciplinary advisory body — and revisit the issues raised in the last round of comments. 

The two most controversial changes concern (1) a five-year limitation on the categories of products subject to regulation and (2) the removal of a provision that would have affected manufacturers’ ability to redesign products.  Readers will recall that both the September and November proposals set out a three-step process – (1) identification of chemicals of concern and the priority products containing them, (2) assessment of alternatives to determine whether a viable, safer alternative is available, and (3) imposition of a regulatory response to protect health and the environment from the alternative selected.  In recognition of the challenges of implementing an entirely new regulatory scheme, the Department’s November proposal would have limited (until January 1, 2016) the categories of products from which priority products could be identified.  Only children’s products, personal care products, and household cleaning products would be eligible.   To avoid stifling innovation, the November proposal also would have removed the so-called “Tier I” notification, a streamlined alternatives assessment for a product voluntarily redesigned or reformulated to reduce or remove chemicals of concern prior to the product being identified as a priority product.  Avoidance of “regrettable substitutions” was the goal of the Tier I notification, but the potential cost to innovation convinced DTSC to remove the requirement.

These eleventh-hour developments create considerable uncertainty for the regulated community and others, which have been struggling to understand the full import of the regulations and prepare for their implementation.  The impending debate over November’s changes is certain to be contentious.  Although the changes seem meritorious, they were proposed in a manner that appears to have eroded trust and damaged the spirit of cooperation.  Whether the various stakeholders can reach consensus on the most controversial issues remains to be seen.   


Philip Moffat Will Participate on ABA Quick Teleconference on California's Green Chemistry Regulations

California Green Chemistry Regulations:

Verdant is pleased to announce that Philip Moffat will participate on a “quick teleconference” program sponsored by the American Bar Association (ABA) Section of Environment, Energy, and Resources entitled California Dreaming or Reality?  California’s New Paradigm in Chemicals and Products Management Could be Coming to a Store Near You.”  The November 15, 2010, teleconference will discuss the regulations recently proposed by the California Department of Toxic Substances Control (DTSC) to implement AB 1879, a new California Green Chemistry Initiative law designed to “accelerate the quest for safer products” in the state.  In addition to discussing the law’s requirements and its implementation, the teleconference will provide both industry and public health perspectives.

Other speakers include:

  • Ann Grimaldi, McKenna Long & Aldridge LLP, San Francisco, CA
  • Doug Fratz, Vice President, Scientific & Technical Affairs, Consumer Specialty Products Association, Washington, DC
  • Dr. Joseph Guth, UC Berkeley Center for Green Chemistry; and the Science and Environmental Health Network, Berkeley, CA
  • Maziar Movassaghi, Acting Director, DTSC, Sacramento, CA

There are two ways to participate in this program, either attending a host site location or individual dial-in.  Participation at a host site location is free of charge for ABA members, and $110 for non-members.  Registration with the host site contact is required, however:

  • Austin, TX
    Brown McCarroll, L.L.P., 111 Congress Ave., Ste. 1400
    RSVP: Keith Hopson, (512) 479-9735 or
  • Bloomfield Hills, MI
    Butzel Long, Stoneridge West, 41000 Woodward Ave
    RSVP: Beth S. Gotthelf, (248) 258-1303 or
  • San Francisco, CA
    McKenna Long & Aldridge LLP, 101 California St., # 41
    RSVP: Cynthia Kelly, (415) 267-4051 or
  • Washington, DC
    McKenna Long & Aldridge LLP, 1900 K Street, NW
    RSVP: Michael Boucher, (202) 496-7729, or Debbie Leitner, (202) 496-7372,

Additional information about the teleconference is available here.  And a copy of the presentation is available here:  Moffat_CAGreenChem

Reminder: Upcoming DTSC Symposium on Green Chemistry and Public Health

Green Chemistry:

Yesterday, the California Department of Toxic Substances Control (DTSC) circulated the following announcement regarding an upcoming symposium on Green Chemistry and public health.  The event will be held on October 18.  DTSC and the Department of Public Health are co-sponsoring the event.  More details, including a copy of the agenda, are provided in the excerpt below.

“DTSC and the California Department of Public Health will host a brown-bag symposium on October 18 to explore impacts of Green Chemistry on public health. Keynote Speaker is Margaret L. Kripke, Ph.D., a member of the President’s Cancer Panel which recently advocated expanded research into Green Chemistry.  Kripke is a professor of immunology at the University of Texas, MD Anderson Cancer Center. Our afternoon keynote speaker is Steve Owens, Assistant Administrator for the Office of Chemical Safety and Pollution Prevention at the U.S. Environmental Protection Agency.  Owens oversees regulatory and scientific programs on pesticides and industrial chemicals along with numerous collaborative pollution prevention programs.

The symposium will be held on October 18, 2010 from 10 a.m. to 3 p.m. at the California Department of Public Health East End Complex, 1500 Capitol Ave., Sacramento, CA. It is free, open to the public and to all interested stakeholders in Green Chemistry and Public Health.

For more information or to register for in person or live webcast attendance, please visit:

To view the agenda, visit:

Instructions on how to view the webcast will be provided a few days before the event.

To subscribe to or unsubscribe from the DTSC Green Chemistry Initiative Listserv or other Listservs, please go to  For information on DTSC`s Green Chemistry Initiative, go to

California DTSC Requests Comment on Proposed Green Chemistry Regulations for Safer Consumer Product Alternatives

Green Chemistry Regulations:

After nearly two years of public meetings, informal comment periods and other multi-stakeholder collaborative efforts, the California Department of Toxic Substances Control (DTSC) released on September 15, 2010 its proposed Safer Consumer Product Alternatives regulations, a key component of California’s Green Chemistry Initiative.  The proposed regulations would require DTSC to create a list of chemicals identified as posing the greatest threats to human health or the environment, the so-called “Priority Chemicals.”  Using a number of factors such as volume in commerce and extent of public exposure, DTSC would then prioritize products containing those chemicals.  Entities responsible for commercial introduction of the highest priority products, the so-called “Priority Products,” would be required to perform an alternatives assessment to determine whether a viable safer alternative is available.  The alternative ultimately selected would inform DTSC’s regulatory response, which could range from no action to sales prohibitions.

The proposed regulations represent a paradigm shift in the regulation of chemicals and products, having significant implications for all members of a product’s value chain.  The process for identifying Priority Chemicals and Priority Products is complicated and information-intensive.  Products undergoing an alternatives assessment will require a substantial resource commitment.  To help ensure compliance, reduce the risk of reputational harm, maintain market presence, and potentially identify new opportunities, companies will need to understand the process, closely monitor future DTSC pronouncements and be prepared to respond appropriately.

Companies placing products into the stream of commerce in California that have not yet reviewed the proposed regulations are probably doing so now.  Although many industry representatives actively participated in the collaborative drafting process, many more did not, mistakenly believing that their products were not “consumer products” and therefore would not be affected.  The reality is that only a limited universe of products is excluded from the definition of consumer product or otherwise eligible for some type of exemption.

Public comments on the proposed regulations are due on November 1, 2010, the same date as the public hearing on them.  DTSC intends to complete the formal rulemaking process by the end of 2010, as required by statute.  A copy of the proposed regulations, a set of Frequently Asked Questions, a conceptual flowchart, and other information is available here.

Readers that are familiar with the previous draft of the regulations may be interested in the type of changes that DTSC incorporated into the current proposal.  DTSC claims that the changes:

  • Address criticism that the initial scope of chemicals list was too narrow.  DTSC has significantly broadened the proposed scope by expanding the lists of authoritative bodies that could be consulted for establishing the Priority Chemicals list.
  • Respond to concerns that the previous draft regulation’s lack of deadlines could cause unintended delays.  Proposed deadlines are now included for both chemicals and products lists along with specific timelines for various regulatory steps.  (These are set out in more detail below.)
  • Additionally, DTSC has added a tiered process for alternative assessments intended to reduce the time for identifying safer alternatives and provide more specific performance targets to move manufacturers through the regulatory process.
  • Address comments regarding the complexity of the process.  DTSC has simplified the process somewhat and clarified what information would be required and how it would be submitted.
  • Respond to requests to have public comments on regulatory actions.  DTSC now proposes to allow public comment on any regulatory responses that are triggered by a DTSC ruling or determination.

The proposed regulations include the following deadlines:

  • The proposed initial list of Chemicals under Consideration must be issued for public review and comment no later than June 1, 2011;
  • The final initial list of Chemicals under Consideration must be issued no later than March 1, 2012;
  • The proposed initial list of Priority Chemicals must be issued for public review and comment no later than July 1, 2012;
  • The proposed initial list of Products under Consideration must be issued for public review and comment no later than March 1, 2013;
  • The proposed initial list of Priority Products must be issued for public review and comment no later than September 1, 2013;
  • The final initial list of Priority Products must be issued no later than December 1, 2013.

Future postings may delve further into various aspects of the proposed regulations, as well as review public comments that are submitted to DTSC.

EPA Issues Proposed TSCA IUR Modifications Rule


On August 13, 2010, the Environmental Protection Agency (EPA) published a notice in the Federal Register, proposing to modify the Inventory Update Reporting (IUR) rule.  For readers less familiar with the IUR, this is a rule established under section 8(a) of the Toxic Substances Control Act (TSCA).  It enables EPA to collect, and then make public, critical information on the manufacture (including import), processing, and use of certain chemicals listed on the TSCA Chemical Substances Inventory.  This includes current information on volumes of chemical production, manufacturing facility data, and how the chemicals are used.  EPA uses this information to help identify and, when necessary, manage potential risks that some chemicals may pose to human health or the environment.

The proposed rule includes a number of important changes that will impact industry.  Among these include: requiring electronic reporting; increasing the reporting frequency; requiring process and use information for substances over 25,000 pounds; changing the method for determining whether the reporting threshold has been exceeded; replacing the “readily obtainable” reporting threshold with “reasonably ascertainable” for processing and use information; and requiring submission of production volume information for all years in between reporting periods. 

EPA intends to issue the final rule in advance of, and have it apply to, the 2011 submissions.  That submission period runs from June 1, 2011 through September 30, 2011.  Reporting companies are closely monitoring this development to ensure compliance with the requirements EPA ultimately adopts.  Comments must be received on or before October 12, 2010.

EPA states that it is modifying the rule to meet four primary goals:

  • To tailor the information collected to better meet the Agency’s overall information needs;
  • To increase its ability to effectively provide public access to the information;
  • To obtain new and updated information relating to potential exposures to a subset of chemical substances listed on the TSCA Inventory; and
  • To improve the usefulness of the information reported.

The changes the Agency is proposing to meet these goals are discussed in further detail below.

I.      General Reporting Changes

  • The reporting frequency would be increased.  Reporting would return to its previous four-year cycle, making the first post-2011 submission due in 2015.  EPA also requested comment on whether to require a different reporting frequency. 
  • The method would change for determining whether a report was required. 
    • In general, an IUR report would be required for any post-2011 submission whenever a non-exempt chemical is manufactured or imported in volumes of 25,000 lbs. or more at any single site owned or controlled by the manufacturer in any calendar year since the last principal reporting year.
    • EPA also requested comment on whether alternative methods would provide an equally accurate picture of chemical production, and whether more frequent reporting on a limited set of chemicals would be more appropriate.
    • However, the 25,000 lb. threshold would eliminated for reporting on chemicals subject to a rule promulgated pursuant to TSCA sections 5(a)(2), 5(b)(4) or (6), subject to a TSCA section 5(e) or section 5(f) order, or that is the subject of relief granted in a civil action under TSCA sections 5 or 7.  EPA also requested comment on whether chemicals included in a proposedrule under sections 5(a)(2), 5(b)(4), or 6 should be part of this group as well, and whether a de minimus reporting threshold should set for the group.
    • EPA also requested comment on changing the applicability threshold from 25,000 lbs. to 10,000 lbs.
  • Electronic reporting, using reporting software and the internet, would be required for preparation and submission of all IUR information.  Paper reporting and submitting reports as files on electronic media (e.g., CD-ROM) would no longer be allowed.
  • The requirements concerning assertion of claims of confidential business information (CBI) and EPA’s response to such claims would be changed.
    • EPA would release publicly chemical identity information without notice to the reporting company for those chemicals already on the public portion of the TSCA Inventory.
    • Substantiation would need to be provided up front for processing and use information; otherwise, the Agency would not consider the information confidential and would make it publicly available without notice to the reporting company.
    • EPA would disallow confidentiality claims for processing and use data elements identified as not “known to or reasonably ascertainable.”
    • EPA would consider the name and site identity to be separate items, requiring separate claims and substantiation for each.

II.      Reporting of Manufacturing Information

  • More manufacturing (and importing) data elements would reported, such as:
    • The name of the ultimate domestic parent company, making the IUR report consistent with the Toxic Release Inventory (TRI) reporting requirements under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA);
    • The current Chemical Abstracts (CA) Index Name, as used to list the chemical substance on the TSCA Inventory, would be required as part of the chemical identity;
    • Production volume for each year since the previous principal reporting year (i.e., 2005), rather than just the principal reporting year;
    • The production volume of a manufactured (including imported) chemical used at the reporting site;
    • Whether an imported chemical is physically at the reporting site;
    • The production volume of the chemical directly exported and not domestically processed or used; and
    • Whether a manufactured chemical, such as a byproduct, is being recycled, remanufactured, reprocessed, reused, or reworked.

III.      Reporting of Processing and Use Information

  • The threshold would change for reporting processing and use information.  The current 300,000 lb. threshold would be eliminated.  Companies submitting Parts I and II of Form U would also complete Part III.  EPA also requested comments on whether stakeholders disagree and believe that there should be a threshold for this information. 
  • The standard for reporting would be changed from reporting of all information “readily obtainable” to the “known to or reasonably ascertainable to the submitter” standard that applies to the other information reported on Form U.
  • The list of industrial function categories for the reporting of processing and use information would be revised and the five-digit North American Industrial Classification System (NAICS) codes would be replaced with 48 Industrial Sectors (IS), and entries of “other” would be required to include a written description of the use.
  • Reporting on consumer and commercial product categories would be changed.
    • Companies would have to distinguish between consumer and commercial product categories, or indicate if both are relevant.
    • The consumer and commercial product categories would be revised and expanded for consumer and commercial use information, and an explanation would be necessary with the “other” product category is selected.
    • Reporting on the number of commercial workers potentially exposed to the chemical would be required.
  • EPA requested comments on potentially changing the IUR reporting requirements in the future to parallel exposure reporting required on new chemicals via the pre-manufacture notification (PMN), thereby allowing more quantitative exposure assessment, and whether such detailed information might be collected through the IUR, a new reporting mechanism under TSCA Section 8(a), or through the use of TSCA Section 11(c) subpoena authority.
  • EPA also requested comments on whether processors should be subject to future exposure-related reporting.

IV.    Other Proposed Changes

  • Definitions would be adopted or revised to address toll manufacturing, portable manufacturing, and other past reporting challenges.  Among these include: 
    • “Manufacture” would be revised to include production under a toll arrangement and the manufacturing entity and the entity contracting for such service would both be defined as the “manufacturer” and thus, responsible for filing an IUR, although only one report need be filed.
    • “Site” would be revised to address toll manufacturing, portable manufacturing, and importation.  Specifically, the new definition would make the place of production under a toll agreement the “site” for purposes of IUR reporting.  The distribution center would be designated as the “site” for manufacture in portable manufacturing units.  Lastly, the location of an importer’s headquarters in the United States, the location of an operating unit in the United States, or, if neither of those locations exists, the address of the agent in the United States authorized to accept service of process would be designated as the “site.”
  • Several chemicals would receive expanded exemptions and others would be deemed ineligible for exemptions:
    • Manufactured water, water from petroleum streams, and the three polymers that are currently partially exempt from the IUR requirements would be completely exempted; and
    • Chemicals for which an enforceable consent agreement (ECA) to conduct testing has been made would be ineligible.
  • Responding to questions and issues that have arisen concerning byproduct reporting; EPA developed and requests comments on draft guidance for such reporting.

V.      Concluding Thoughts

EPA’s proposed changes move the Agency closer to meeting its stated goals.  They should help resolve many of the difficulties it encountered using the information received in the last IUR reporting cycle.  The limitations and requirements on the protection of CBI are not surprising given the Agency’s stated interest in expanding public access to information on chemicals.  Nonetheless, it is clear that the proposed changes will increase industry’s reporting burden and place more confidential business information at greater risk of public disclosure. 

Reminder: Upcoming California DTSC Symposium on Life Cycle Analysis

Green Chemistry:

This evening the California Department of Toxic Substances Control (DTSC) circulated the following announcement, reminding interested persons about the upcoming symposium on life cycle analysis.

“DTSC invites you to the Life Cycle Analysis: 101 Brown-Bag Symposium, taking place on Thursday, Sept. 23, 2010. This session looks at real-world examples of life cycle analysis (LCA) and how it affects product formulation, decision analysis and business practices. Presenters from HP, P&G, PE Americas and UCLA will share their front-line experiences of developing protocol and collaboration to successfully complete LCAs.

The symposium takes place in the Elihu M. Harris Building in Oakland, from 10:30 a.m. to 3 p.m. Bring a lunch and plenty of questions for our presenters. Register ( to attend in person or participate via webcast.”

EPA Grants TSCA Section 21 Petition on Cadmium


On August 30, 2010, EPA granted a citizen’s petition filed under section 21 of the Toxic Substances Control Act (TSCA) requesting Agency action on cadmium and cadmium compounds.  Empire State Consumer Project, the Sierra Club, the Center for Environmental Health, and Rochesterians Against the Misuse of Pesticides filed the petition on May 28, 2010.  The petitioners wanted the Consumer Product Safety Commission (CPSC) to act to protect children against cadmium present in toy jewelry, but if the CPSC did not act, they wanted EPA to take action under TSCA.  The petitioners argued that analysis of Chinese imports strongly suggested that cadmium was being used in toy jewelry as a cheap substitute for lead, which is now strictly regulated by the CPSC.  The petition followed several recalls ordered by the CPSC and numerous warnings to Chinese exporters and others.

The Petition

The petition demanded that CPSC take several actions, including: (1) classifying as a banned hazardous substance under sections 2 and 3 of the Federal Hazardous Substance Act (FHSA) toy metal jewelry containing cadmium above trace amounts, thereby requiring manufacturers, importers, and processors to test and certify their products under the Consumer Product Safety Safety Improvement Act of 2008 (CPSIA); (2) revising the test method, if the cadmium limit is to be based on the amount that can be extracted, to better reflect usage scenarios; and (3) using its participation on the Interagency Testing Committee (ITC) established under TSCA to request EPA’s immediate adoption of testing and reporting methods, if CPSC believes that it lacks sufficient information on the extent of cadmium in children’s products or needs additional information to determine the appropriate limit for cadmium in those products.

The petition also sought specific EPA actions, including: (1) requiring health and safety data reporting for cadmium and cadmium compounds under section 8(d) of TSCA; and (2) issuing under section 6 a rule setting limits on cadmium and cadmium compounds in toy jewelry.   The section 8(d) rule was to apply to producers, importers, and processors of cadmium and cadmium compounds reasonably likely to be incorporated into consumer products.  Petitioners demanded that EPA seek lists and/or copies of the following types of ongoing and completed health and safety studies:

a.   epidemiological or clinical studies;
b.   studies of occupational exposure;
c.   health effects studies;
d.   ecological effects studies; and
e.   environmental fate studies (including relevant physicochemical properties).

The Agencies Respond

On August 19, 2010, the CPSC published a Federal Register notice, requesting public comments on the petition.  The public comment period closes October 18, 2010.  Many observers anticipate CPSC’s eventual adoption of restrictions on cadmium in certain consumer products, including metal toy jewelry.

EPA is further along in responding to the petition.  In a letter, dated August 30, 2010, EPA Assistant Administrator Steve Owens agreed to have EPA issue a TSCA Section 8(d) rule regarding cadmium and cadmium compounds used in consumer products, especially metal toy jewelry.  The rule will require reporting by producers, importers, and processors of cadmium and cadmium compounds that are reasonably likely to be incorporated into consumer products.   He also indicated that the Agency is willing to consider banning or restricting the metal if the CPSC does not address consumer uses of cadmium; however, the Agency has not used its section 6 authority in many years and it is unlikely to need to do so in light of anticipated CPSC action.

* * * *

Check back occasionally for additional posts concerning the evolving debate over the appropriate regulation of cadmium and cadmium compounds.