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Design for the Environment–EPA’s Safer Product Labeling Program

Green Chemistry/Design for the Environment:

Readers interested in EPA’s Safer Product Labeling Program may want to look through the list of products now authorized to carry EPA’s Design for the Environment (DfE) label.  The list is available here.

On April 20, in anticipation of Earth Day, EPA announced that 2,500 products are now approved to carry the DfE label, including all-purpose cleaners, laundry and dishwasher detergents, drain line maintainers, and car and boat care products. DfE-labeled products do not contain known chemicals of potential concern, like carcinogens, reproductive or developmental toxicants. Even minor product components, like dyes and fragrances, are screened for safety.  In fact, according to EPA, before allowing the DfE logo to be used on a product label, the Agency conducts a scientific evaluation to ensure that candidate products are formulated from the safest possible ingredients.  The Agency’s press release explains that “[t]he DfE label means that EPA has screened each ingredient for potential human health and environmental effects and that the product contains only ingredients that, in EPA’s scientific opinion, pose the least concern among chemicals in their class.”

EPA also announced that DfE labeled products will soon be required to disclose their ingredients (other than trade secrets) to consumers. In addition, new DfE-approved products will need to meet additional life-cycle requirements such as sustainable packaging and limits on volatile organic compounds.  The new disclosure and life-cycle requirements will be phased in for existing DfE products, but some companies are already moving to comply with those standards.

Instructions on the application process for DfE labeling are available here.

Click here for the DfE home page.

Leading Consumer Products Companies Explain How and Why They Share Chemical Data Along the Supply Chain

Green Chemistry/Sustainable Supply Chain Management:

The Green Chemistry and Commerce Council (GC3) recently published a report titled, Meeting Customers’ Needs for Chemical Data: A Guidance Document for Suppliers.  The Guidance Document is designed to improve supply chain communication between suppliers and their customers concerning chemical identities and health and safety data.  In the report, leading companies such as HP, Johnson & Johnson, Method, Nike, SC Johnson, and Wal-Mart explain why they want such data and how they interact with their suppliers to obtain it. 

Readers unfamiliar with GC3 should know that it is a business-to-business forum for members to discuss and share information and experiences relating to the advancement of green chemistry, design for the environment, and sustainable supply chain management.  GC3, which began in 2005, is a project of Lowell Center for Sustainable Production at the University of Massachusetts Lowell.  GC3 prepared the Guidance Document with two goals in mind: “(1) to advance the efforts of companies trying to obtain the chemical data needed for regulatory and corporate sustainability programs and in response to market demands, and (2) to advance the efforts of suppliers to provide chemical data needed by their customers.”

The Guidance Document is a response to the growing demand for increased transparency concerning chemical-related data. Companies attempting to bring “green” or “safer” products to the market need chemical identity and health and safety data at the product design phase.  Access to this information enables them to evaluate and manage market, regulatory, and tort liability risks, as well as respond to requests from their customers, including consumers, wanting more information.

The Guidance Document should prove helpful to suppliers less familiar with the trend toward greater transparency, the rationale supporting it, and the techniques used to sustain it.  The document explains why fabricators and formulators are requesting chemical data, what chemical data are being sought, how suppliers can benefit from sharing data, why Material Safety Data Sheets (MSDS) often provide inadequate data, how companies are handling confidential business information, how fabricators and formulators collect data from their suppliers and what they are doing with the data, and where suppliers can obtain the data being requested.  In addition to describing the chemical data collection practices of different companies, the Guidance Document also provides customizable letters and forms that companies can use to facilitate their communications. 

More information about GC3 is available here.

USDA Launches BioPreferred Product Certification and Labeling Program

Sustainable Products:

On January 20, 2010, the US Department of Agriculture (USDA) published a final rule announcing its BioPreferred Program, a voluntary product certification and labeling program established under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 8102.  According to the USDA press release, “this new label will clearly identify biobased products made from renewable resources, and will promote the increased sale and use of these products in the commercial market and for consumers.” The rule is effective February 22, 2011.

Under the program, a biobased product, after being certified by USDA, can be marketed using the “USDA Certified Biobased Product’’ label.  Biobased products are those composed wholly or significantly of biological ingredients – renewable plant, animal, marine or forestry materials. The presence of the label will mean that the product meets USDA standards for the amount of biobased content and that the manufacturer or vendor has provided relevant information on the product for the USDA BioPreferred Program web site. The rule applies to manufacturers and vendors who wish to participate in the voluntary labeling component of the BioPreferred Program.  It also applies to other entities, such as trade associations, that want to use the label to promote biobased products. 

With the launch of the USDA biobased product label, the BioPreferred program is now comprised of two parts: a biobased product procurement preference program for Federal agencies, established in 2005, and a voluntary labeling initiative for the broad-scale marketing of biobased products.  According to the USDA’s website, the Agency has already designated approximately 5,100 biobased products for preferred purchasing by Federal agencies. The new label will make identification of these products easier for Federal buyers, and will increase awareness of these high-value products in other markets. USDA estimates that there are 20,000 biobased products currently being manufactured in the United States and that the growing industry as a whole is responsible for over 100,000 jobs.

Lastly, readers will recall that the Federal Trade Commission (FTC) recently proposed revisions to its guidance concerning compliance with section 5 of the FTC Act when making environmental marketing claims – the so-called “Green Guides.”  In that proposal, the FTC elected to defer to the USDA’s BioPreferred labeling program for guidance on marketing products covered by the program.  So, companies making “biobased” marketing claims in compliance with the USDA’s requirements presumably would have a limited safe-harbor from FTC enforcement.  However,  the FTC has reminded marketers that its proposal contains guidance concerning “made with renewable materials” claims, which can be similar to “biobased” claims, so marketers would need to remain mindful of that guidance when making such claims.

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.   

 

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 Requests Comments on Its Role in Advancing Sustainable Products

Pollution Prevention Act/Sustainable Products:

In today’s Federal Register, EPA solicited comments from stakeholders on potential roles for the Agency in advancing sustainable products.   According to the notice, EPA will consider the comments it receives and as well as information it gathers from other sources to help define its role and develop a strategy that identifies how the Agency can make a meaningful contribution to the development, manufacture, designation, and use of sustainable products.  Comments are due by October 19, 2010.

EPA requested input on the following questions:

1.   What do you see as the major policy and research challenges, opportunities, and trends impacting the development, manufacture, designation, and use of sustainable products?

2.   What do you see as EPA’s overall role in addressing these challenges and opportunities?

3.   In particular, how do you see EPA’s role in:

  • Assembling information and databases.
  • Identifying sustainability ‘‘hotspots’’and setting product sustainability priorities.
  • Evaluating the multiple impacts of products across their entire life cycle.
  • Defining criteria for more sustainable products.
  • Generating eco-labels and/or standards.
  • Establishing the scientific foundation for these eco-labels and/or standards.
  • Verifying that products meet standards.
  • Stimulating the market.
  • Developing end-of-life management systems (reuse, recycling, etc.).
  • Measuring results, evaluating programs.

EPA cites Section 13103(b) of the Pollution Prevention Act of 1990 (PPA) as its authority for this action.  That section requires the Administrator of EPA to facilitate the adoption of source reduction techniques by businesses and to identify opportunities to use Federal procurement to encourage source reduction.  For those who are less familiar with the PPA, 2010 is the Act’s 20th anniversary. 

It’s nice to see EPA allowing its use of the PPA authority to evolve in response to today’s market demands and societal needs.   However, the potential impact on market competition from Agency involvement in this area means that EPA’s notice is likely to receive a mixed reception.   Some will welcome it as an opportunity to help organize a market that seems crowded, disorganized, confusing, and misleading in some cases.  Others will prefer to let this rapidly evolving market mature without excessive government involvement.  And still others will worry about the regulatory consequences for products that are not deemed sustainable should the Agency promote a defined set of  criteria or support a particular eco-label.  Undoubtedly, many stakeholders will submit comments to sensitize the Agency to these concerns, as well as the potential trade-offs and other considerations.

So, what do readers think?  Should EPA attempt to set criteria identifying which products are “sustainable” or should the market be left to do that?  Again, comments are due by October 19, 2010.