OHA Announces New Rules for Limiting Toxic Chemicals in Children's Products

The Oregon Health Authority (OHA) has announced proposed rulemakings related to implementation of the Toxic Free Kids Act (TFKA).

The TFKA was passed in 2015 and requires manufacturers of children's products to identify and report products containing high priority chemicals of concern for children's health. Under the TFKA, a "manufacturer" is the producer of a children's product, but also an importer or domestic distributor.

The TFKA requires OHA to adopt a list of High Priority Chemicals of Concern for Children's Health (HPCCCH) and establish requirements for reporting of such chemicals to OHA. Ultimately the manufacturer, importer, or domestic distributor must seek a waiver for use of these chemicals or remove them from the products.

What Does the New Rule Do?

So far, there have been two biennial notification cycles in which manufacturers have reported products containing HPCCCH, but manufacturers have used different methods to determine the proportion of HPCCCH in each product.

One method reports the concentration of HPCCCH in individual components, and the other method reports the concentration in the whole product. The OHA has determined that requiring the component method ensures fair applicability of the law across manufacturers of children's products and is less likely to result in unreported chemicals.

In August 2021, OHA promulgated a temporary rule change to require manufacturer reporting to follow the component method. This proposed rulemaking makes the temporary rule change permanent. In addition, the proposed rulemaking specifies that manufacturers must report the amount of a chemical used in each unit within a product category.

Where there are multiple concentrations for a given unit in a particular product category, the manufacturer is to report the unit with the highest concentration. These modifications will apply to biennial notifications due on January 1, 2022, for products sold or offered for sale in Oregon in 2020 and 2021.

The proposed rulemaking also adds five chemicals to the list of HPCCCH, each of which was also added to the Washington State Department of Ecology's Reporting List of Chemicals of High Concern to Children. These chemicals include:

• Dicyclohexyl phthalate (DCHP);
• Diisobutyl phthalate (DIBP);
• Bisphenol F (BPF);
• Ethylhexyl diphenyl phosphate (EHDPP); and
• Chlorinated paraffins.

If a manufacturer of children's products uses any of the five HPCCCH added to the list, they would be required to notify OHA and submit the $250 notification fee by the next reporting period (January 1, 2024).

What's Next? Compliance Timeline

A virtual hearing is scheduled for November 18, 2021 at 1:00 p.m. The Notice of Proposed Rulemaking can be found here.

As those changes take effect, producers, distributors, and retailers should communicate to determine who is required to provide a biennial notice for the product in question and pay the fee. Assuming the proposed rule goes into effect, covered entities should develop compliance plans early to avoid risk of civil penalties.

In addition to implementing the component method of reporting chemicals, starting on January 1, 2022, covered entities will be required to remove, substitute, or gain a waiver for HPCCCH in specific categories of children's products, e.g., products that are mouthable, a children's cosmetic, or products made for children under the age of three.

Violations are subject to civil penalties of up to $5,000 for the first violation and up to $10,000 for subsequent violations.