Massachusetts Latest State to Consider New Chemical Restrictions

Late last month, the Massachusetts State Legislature held a hearing on several new bills that would potentially restrict, prohibit, or require new warnings for chemicals in consumer products. Massachusetts already has chemical restrictions on a number of substances ranging from BPA to mercury to lead, as well as state directives to follow green policies concerning the products it buys. There was no immediate indicator of how or when the lawmakers would vote on the new bills — they have until March of next year to pass them into law — but the movement toward additional state regulation puts Massachusetts at the forefront of a national trend, as well as a national debate.

During the hearing, several representatives from trade groups, chemical manufacturers, and chemical end-users testified against the bills. Typical arguments included that the new regulations were redundant or unnecessary, were based on speculative science, would compromise trade secrets, were better left to federal legislators, or would do more harm than good. For example, the American Cleaning Institute, an association for cleaning product manufacturers, testified that the proposed bills would restrict certain hand soaps used in schools, and that consequently “the ability to protect public health in a variety of school-based applications would also thereby be limited.”

Five chemicals are already banned in all 50 states under the EPA’s Toxic Substances Control Act. They include polychlorinated biphenyls (PCBs), fully halogenated chlorofluoroalkanes, dioxin, asbestos, and hexavalent chromium. The FDA also maintains a list of ingredients that are prohibited and restricted in consumer products in every state.

Despite this, the majority of states have at least some regulation of chemicals that goes above and beyond national minimums. Typically, these extra regulations focus either on protecting human health or protecting the environment. Some chemicals and substances get more attention than others. For example, according to a 2013 study, 32 states have enacted additional policies restricting the use of mercury. However, only three states (California, New York, and Washington) have issued state rules restricting the use of copper. Even states with zero state restrictions — like Missouri and Mississippi — have passed legislation mandating environmentally preferable purchasing and/or created product stewardship policies that seek to minimize the environmental impact of a chemical through the state’s careful use of it.

Many hold that if stronger federal chemical protections existed, there would be less impetus for state regulations. There is at least some evidence that this could be on the horizon. Earlier this year, the bipartisan Frank R. Lautenberg Chemical Safety for the 21st Century Act — also known as the Udall-Vitter Bill or Toxic Substances Control Act Reform Bill — was submitted to the U.S. Senate. The bill would significantly overhaul previous toxic substances rules for the first time in nearly 40 years. However, in order to pass, it will need to convince those from the chemical industry that it doesn’t go too far, while convincing those in the environmental movement that it indeed goes far enough. Until this or a similar overhaul does become a national law, EHS professionals can continue to expect states to pass their own regulations at a quickening pace.

With all of this new regulation looming, it’s a great time for manufacturers and users of hazardous chemicals to revisit replacing hazardous chemicals with potentially safer options. Many big box retailers are leading this charge in calling for chemical substitution. They are requiring suppliers to be much more transparent in disclosure of hazardous ingredients, and telling their vendors to deliver safer, more sustainable product lines that are free from a growing list of hazardous chemicals. The motivation is both safety and good business. Consumers are spending their dollars on toxic-free products and on companies that have corporate social responsibility (CSR) programs in place and that show the appropriate concern for their employees and the environment. As consumers begin to vote with their pocketbooks, companies can prepare by moving to a less hazardous suite of chemicals.