There is high and growing concern among the general public regarding adverse health effects from exposures to toxic chemicals in consumer products, especially from exposures to children. These concerns initially came to a head in the mid-2000s, resulting in passage of the federal Consumer Product Safety Improvement Act of 2008 (CPSIA). CPSIA imposed numerical limits on lead and certain phthalates in children’s products along with mandatory testing and conformity certifications. These requirements went into effect earlier this year following a lengthy rulemaking process.
Being limited to lead and phthalates, CPSIA is not structured as a comprehensive statute designed to regulate additional chemicals when new information concerning toxicity or adverse health effects from exposures comes to light. Given CPSIA’s limited scope, a few states have adopted statutes creating a comprehensive process to identify and regulate chemicals of concern. The statutes are structurally similar, assigning roles to both product manufacturers and state agencies to identify and maintain lists of chemicals of concern and to disclose relevant information to the state and consumers. The statutes also grant states legal authority to limit the use of chemicals of concern in children’s or consumer products consistent with standards that are protective of human health. California, Washington, Maine, and Minnesota currently have such statutes. Many state legislatures are considering similar legislation in their 2013 sessions. Alaska, Connecticut, Massachusetts, Nevada, New York, Oregon, and Vermont have all proposed legislation generally following the identification, listing, evaluation, and restriction formula in the existing state statutes. Idaho and Florida are considering statutes requiring identification of chemicals of concern only, encouraging voluntary efforts to find alternatives to chemicals of concern when feasible.
In addition to comprehensive statutes, many states are evaluating legislation to ban, limit, or require disclosure of specific chemicals known to cause adverse health effects. For example, the following states are currently considering some sort of bisphenol A (BPA) ban in food and drink containers for children (and in some states, in all food and drink containers, in toys, and in retail receipts): Arizona, Connecticut, Hawaii, Kentucky, Massachusetts, Maine, New Jersey, New York, Pennsylvania, Tennessee, Texas, and West Virginia. Many states are considering bans, limits, or disclosure requirements in the use of flame retardants and metals such as cadmium and lead in consumer and children’s products. Finally a few states are considering legislation requiring disclosure of cancer-causing or other toxic chemicals in cosmetics, which would be novel law if passed.
Manufacturers are ill-served by a system of varied state requirements that, essentially, requires manufacturers to continually identify and comply with the most stringent state standards applicable to their products. The Maryland house has proposed a joint resolution recognizing the problems inherent in a state-by-state system, expressing support for reform of the Toxic Substances Control Act to create a comprehensive federal system to identify and regulate toxic chemicals in children’s and consumer products effectively. Given the existing state statutes and the likelihood of additional states adopting similar laws this year, the patchwork system appears to be here and in place until the federal government steps in. Manufacturers and retailers will be better served by a balanced federal approach, which will avoid all of the problems inherent in a hodgepodge system of different state standards.