Overview
In the U.S., the regulation of chemicals in consumer products at the state level is not harmonized, a patchwork approach that is challenging to all involved. This fact sheet provides a summary of the approaches that different states have taken in regulating chemicals such as banning or restricting certain chemicals or enacting mandatory reporting/notification requirements, mandatory labeling, and mandatory disclosure of certain chemicals under specific conditions.
Background
State regulation of chemicals is not new. Whenever federal regulatory programs have been de-emphasized, states have proceeded on their own to address perceived gaps in regulatory protections. The adoption of Proposition 65 by California voters in 1986 is an excellent example of this dynamic, with proponents of the initiative arguing that federal programs provided inadequate protections against carcinogens and reproductive toxicants. As federal efforts to regulate chemicals has languished, a growing number of states (e.g., Maine, Minnesota, and Washington) identified chemicals of concern and established their own disclosure and reporting programs. The compliance complexities created by different state level regulatory frameworks has renewed the business community’s interest in a harmonized, national approach.
A broad coalition of stakeholders worked to reform the Toxic Substances
Control Act (TSCA), which is the primary federal statute governing assessment and control of toxic substances. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) was passed in 2016 ushering in TSCA reform. Among
other requirements, this reform mandates that the Environmental Protection Agency
(EPA) conduct health and environmental based risk evaluations for certain
existing and all new chemicals on a strict timeline. EPA also now has more
authority to require testing, impose labeling requirements, identify use
restrictions, or outright eliminate a risky chemical on a phased schedule.
These changes are expected to eventually lead to improved public health
and a cleaner environment.
The political coalition backing TSCA reform basically agreed to limit
state’s authority to regulate chemicals in exchange for a more effective
federal regulatory program.
Under the reform, states are generally pre-empted from regulating chemicals
more strictly than the federal government. Existing state chemical regulatory
programs (adopted prior to April 22, 2016) are grandfathered in and state controls
in effect on August 31, 2003 are not preempted. Because federal implementation
of the TSCA reforms has proceeded more slowly than expected, states have
continued to adopt regulations to fill the perceived gaps in regulating
chemicals, including those found anywhere from food packaging to
children’s products to consumer products in general.
So how does all of this impact retailers? Retailers and brands with store fronts face
demands from consumers and non-governmental organizations (NGOs).
Even if a law does not specifically ban or restrict the use of these
chemicals/chemical groups in consumer products, retailers and brands are
often under pressure from consumers to avoid stigmatized chemicals.
As a result, many retailers are adopting product curation programs that
encourage suppliers to formulate away from chemicals of concern to improve
their marketability and to eliminate the regulatory burden of tracking and reporting
that is associated with those substances.
State approaches
States have approached the regulation of chemicals in consumer products in a
myriad of ways including mandatory disclosure or reporting, and chemical
bans or restrictions. In some cases, the regulation covers specifically
named chemicals, a chemical group such as mercury compounds, a chemical
class such as PFAS (per- and polyfluoroalkyl substances) or a functional class
such as flame retardants. In other cases, the regulation may cover
specific types of consumer products such as toys while other regulations
are broader and regulate consumer products in general.
Below provides illustrative examples of the various methods that states have
employed to regulate chemicals of concern.
California:
Cosmetics Products
Specifically named chemicals; Chemical groups
Administered by California’s Department of Public Health (CDPH).
Beginning on ' January 1, 2022, manufacturers of cosmetic products
that contain certain flavor and fragrance ingredients will be required
to disclose certain information about their products to California’s
Division of Environmental and Occupational Disease Control
within the State Department of Public Health.
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200SB312&showamends=false
Administered by California’s Department of Toxic Substances
Control (DTSC). Effective January 1, 2025, the manufacture,
sale, delivery, holding or offering for sale in commerce
of any cosmetic product that contains any of the 12
specifically listed intentionally added ingredients is banned.
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml bill_id=201920200AB2762&showamends=false
- Menstrual Products
Specifically named chemicals; Chemical groups
Administered by California’s Department of Public Health
(CDPH). The package label for menstrual products
manufactured on or after January 1, 2023 shall disclose
all ingredients in the product.
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml? bill_id=201920200AB1989&showamends=false
Cleaning Products
Specifically named chemicals; Chemical groups
Administered by California’s Department of Toxic Substances
Control (DTSC). Requires manufacturers (entity whose
name appears on the label) to disclose on the product label and their
website any of the listed chemicals or chemicals groups identified
in the Act if used in a ‘cleaning product.’
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB258
- All products; Drinking water
- Specifically named chemicals; Chemical groups
Administered by California’s Office of Environmental Health Hazard
Assessment (OEHHA). Proposition 65 prohibits knowing discharge of
listed chemicals into drinking water as well as requiring that “person in the
course of doing business” provide warnings on products which contain listed
chemicals.
https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations
Consumer Products
Seven consumer product categories
The California Air Resources Board (CARB) has amended California’s Consumer Products Regulation to reduce Volatile Organic Compound (VOC) limits in personal fragrance products, aerosol crawling bug insecticides, manual aerosol air fresheners and 4 hair care product categories. Effective dates for some of the above start as soon as 2023. https://ww2.arb.ca.gov/news/board-tightens-regulations-smog-forming-compounds-household-products
Hawaii:
Sunscreens
Sunscreens containing Oxybenzone or Octinoxate
Administered by Hawaii’s Department of Health (DOH). Statute
bans the sale of sunscreen containing listed substances without
a prescription.
https://www.capitol.hawaii.gov/session2018/bills/SB2571_CD1_.htm
Maine:
- Children's Products
Specifically named chemicals; Chemical groups; Function
Administered by Maine’s Department of Environmental Protection (DEP).
A manufacturer or distributor of a children’s product that contains a priority
chemical above the de minimis level shall notify the DEP. An Alternatives
Assessment (AA) may be required. The definition of manufacturer includes
anyone “…whose brand name is affixed to the consumer product.
http://www.mainelegislature.org/legis/statutes/38/title38ch16-Dsec0.html
Cosmetics Products
Specifically named chemicals; Chemical groups
Sale of cosmetics developed or manufactured using animal testing
is prohibited after November 1, 2021.
http://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280080514
Maryland:
Cosmetics Products
Specifically named chemicals; Chemical groups
Maryland’s Department of Health administers Maryland’s – Cosmetic
Products – Ingredient Prohibition Act. Effective January 1, 2025,
the manufacture, sale, delivery, holding or offering for sale in
commerce of any cosmetic product that contains any of the
specifically listed intentionally added ingredients is banned.
http://mgaleg.maryland.gov/2021RS/bills/hb/hb0643T.pdf
Minnesota:
- Children's Products
- Specifically named chemicals
Administered by Minnesota’s Departments of Health (MOH). Prohibits the
sale of children’s products containing specifically listed chemicals. https://www.revisor.mn.gov/statutes/2020/cite/325F?keyword_type=all&keyword_sg=statute&keyword=safe%2Btoys%2Bact
New York:
- Consumer Products
- Mercury
Administered by New York’s Department of Environmental Conservation
(DEC). Bans sale of mercury containing consumer products without the
specified labeling. https://www.dec.ny.gov/chemical/8853.html
Children's Products
Specifically named chemicals; Chemical groups
Administered by New York’s Department of Environmental Conservation
(DEC). Prohibits sale of children’s products containing specifically
identified chemicals. Regulated entities have reporting obligations
and notification obligations in addition to prohibition of sale of products
containing listed chemical (effective January 1, 2023). “A retailer is
exempt from the requirements…unless that retailer knowingly sells a
children’s product containing a dangerous chemical after the effective
date of its prohibition for which that retailer has received notification…”
https://www.nysenate.gov/legislation/bills/2019/s501
Oregon:
Children's products
Specifically named chemicals
Administered by Oregon’s Health Authority (OHA). Manufacturers
(including domestic distributors) must provide notice of children’s
products sold in Oregon every two years that contain intentionally
added High Priority Chemicals of High Concern for Children’s
Health (HPCCCH) at or above the practical quantification limits.
https://www.oregon.gov/oha/PH/HEALTHYENVIRONMENTS/HEALTHYNEIGHBORHOODS/TOXICSUBSTANCES/Pages/Toxic-Free-Rules.aspx
Certain children's products
Specifically named chemicals (High Priority Chemicals of Concern for
Children’s Health (HPCCCH))
Oregon’s Health Authority (OHA) administers the Toxic Free Kids Act.
By January 1, 2022, manufacturer’s must secure a waiver or exemption
or otherwise remove the listed substances of concern from certain
children’s products. This is the third and final phase of the multiple
year roll-out of the Toxic Free Kids Act.
https://www.oregon.gov/oha/PH/HEALTHYENVIRONMENTS/HEALTHYNEIGHBORHOODS/TOXICSUBSTANCES/Pages/Toxic-Free-Rules.aspx#phase3
Virginia:
Cosmetic products
The Virginia Humane Cosmetics Act is administered by Sale of cosmetics
developed or manufactured using animal testing is prohibited after
November 1, 2021.
https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0113
Washington:
- Children's products
- Specifically named chemicals
Administered by Washington’s Department of Ecology. Enacts limits
for specifically named chemicals as well as manufacturer reporting
obligations. “For the purposes of this rule, a retailer of a '
children’s product is not a manufacturer unless it is also the
producer, manufacturer, importer, or domestic distributor of the product.”
https://ecology.wa.gov/Waste-Toxics/Reducing-toxic-chemicals/Childrens-Safe-Products-Act