The Nickel Report

California’s Proposition 65 (Prop 65), adopted in 1986 by state voters, has long been considered among the most far-reaching right-to-know and toxic chemical reduction statutes in the country. It now has competition from Washington State’s Pollution Prevention for Healthy People and Puget Sound Act (the “Act”), SSB 5135 (Chapter 292, 2019 Laws), signed into law on May 8, 2019, by former 2020 presidential candidate Governor Jay Inslee. Numerous commentators have called the Act, the nation’s “strongest” policy for regulating toxic chemicals in consumer products.

The Act addresses whole classes of “priority” chemicals, including, but not limited to, phthalates, fluorinated organic chemicals (PFAS), polychlorinated biphenyls (PCBs) and flame retardants. Its general purpose is to increase transparency and reduce the use of these chemicals in priority consumer products, including consumer packaging, to not only protect sensitive human populations but also to protect sensitive species and habitats.

The Act Has Broad Reach

• Many consumer products will require reformulation or be required to use safer alternative chemicals. The Act authorizes the Washington Department of Ecology (DOE) to “restrict or prohibit the manufacture, wholesale, distribution, sale, retail sale, or use or any combination thereof of a priority chemical or class of priority chemicals in a consumer product” after determining that safer alternatives are feasible and available.
• The Act allows DOE to obtain extensive chemical/product information from manufacturers, including importers and domestic distributors of a consumer product. Manufacturers should expect to disclose product information to the agency but may, however, request that proprietary information submitted remain confidential to DOE and exempt from public disclosure.

Excluded Consumer Products

The Act excludes from regulation certain consumer products, including:

• Food and beverages;
• Drugs and biological products regulated by the federal FDA;
• Tobacco products;
• Plastic shipping pallets manufactured prior to 2012;
• Finished products certified or regulated by the FAA and/or DOD;
• Motorized vehicles; and
• Chemical products used to produce an agricultural commodity.

Implementation Schedule

DOE has a relatively aggressive timeline under the Act to regulate high-priority chemicals in priority consumer products. DOE must:

• By June 1, 2020, identify priority consumer products that are a significant source of priority chemicals;
• By June 1, 2022, determine regulatory actions regarding each identified chemical/product; and
• By June 1, 2023, adopt rules to implement these regulatory actions.

Further, every five years, DOE is required to:

• Designate at least five priority chemicals that meet certain criteria, such as a chemical that poses a high concern for children or is a persistent, bioaccumulative toxin.
• Identify priority consumer products that are a significant source of or use designated priority chemicals based upon certain criteria, including, but not limited to: the estimated volume of the chemical(s) present in the consumer product; the potential for exposure by sensitive populations or sensitive species to the priority chemicals; the availability and feasibility of safer alternatives; and if another state or nation has identified or taken regulatory action to restrict or otherwise regulate the chemical in the consumer product. (Washington will likely look to California’s Prop 65 in this instance.)
• Determine regulatory actions to increase transparency and to reduce the use of priority chemicals in priority consumer products.
• Adopt rules to implement these regulatory actions.

DOE is required to create a stakeholder group to provide input on the identification of priority chemicals and priority products. And, importantly, DOE is required to provide the public with an opportunity for review and comment on all regulatory determinations.

Enforcement

Unlike Prop 65, the Act does not contain a citizen enforcement mechanism, which has become the primary means of Prop 65 enforcement. Also, unlike Prop 65, the Act excludes food and beverage products from regulation, a major focus of enforcement under Prop 65. That said, the Act has an enforcement mechanism that authorizes the imposition of civil penalties. Violators may be assessed penalties up to $5,000 for each violation for a first offense and up to $10,000 for each repeat offense. A violator may also appeal the civil penalty to the Washington Pollution Control Hearing Board.

Conclusions

Like California’s Prop 65, Washington’s Act will have consequences on manufacturers, importers and sellers of consumer products containing priority listed chemicals regardless of the state or country in which they are located. Practically speaking, because it is economically infeasible to manufacture products to comply with the laws of just one state, especially in this expanding era of e-commerce, all affected products will need to comply with the Washington state requirements.

Further, DOE will face many difficult decisions as it seeks to implement the Act. One controversial area will be the meaning of what constitutes “feasible” when determining the feasibility of safer alternative chemicals. As an example, deciding whether an alternative chemical is a feasible alternative if it reduces the useful life expectancy of the product it is used in could be a hotly contested issue. The long-term safety of mandated substitute chemicals may not be well evaluated. DOE may also encounter controversy over its analysis of impacts on sensitive receptors, especially to the extent sensitive species may be given priority over people.

Issues like these will need to be assessed, addressed and resolved. The regulatory process outlined above, however, provides ample opportunity for impacted citizens and business to have significant input.