Washington State Releases Preliminary Regulations for 10 Product Categories

SG 104.22

Washington State’s Department of Ecology has released preliminary draft restrictions and reporting requirements for 10 priority products evaluated under its green chemistry scheme. 

The Safer Products for Washington program (RCW 70A.350), signed into law in May 2019, was designed to reduce toxic chemicals in consumer products – to protect people, the environment, and sensitive populations and species. It is structured in four phases in which the Washington State’s Department of Ecology (DoE) is tasked with (1) prioritizing chemical classes, (2) prioritizing consumer products, (3) determining potential regulatory actions and (4) rulemaking. Right now, the department is in its fourth and last phase of rulemaking. It released a preliminary draft rule on August 9, 2022, and will be accepting comments on its draft rule until August 31. Once the rule is signed into law it will add the new chapter 173-337 to the Washington Administrative Code.

The draft regulation is structured into Part A ‘General’ and Part B ‘Chemicals and consumer products.‘ Part A contains provisions relating to, amongst other items, the applicability of the rule, definitions of keywords, enforcement and penalties, and information on how to request an exemption under the rule. This part also specifies reporting requirements. According to the preliminary rule, reporting needs to be submitted to the DoE by January 31, 2024 and annually thereafter by January 31 of each year. 

The rule would apply to:

• Entities manufacturing, selling (via various sale channels), or distributing priority consumer products containing priority chemicals in Washington State
• Entities intentionally adding priority chemicals in the production of priority consumer products in Washington State
• Entities using a priority consumer product that contains a priority chemical in Washington State

There is an option for exemption if a person required to comply with the Part B requirements submits a request to the DoE providing the justification for it.

Part B contains the actual chemical restrictions and reporting requirements. Overall, it targets five different chemical classes covering perfluoroalkyls (PFAS), ortho-phthalates, flame retardants, alkylphenol ethoxylates and bisphenols. It applies reporting requirements to four chemical product combinations, and restrictions to ten chemical product combinations. Product categories covered include electronics, food and drink cans, laundry detergent and furnishings. The newly released detailed restrictions and reporting requirements are highlighted in Tables 1 to 5 below. 

The preliminary rule also introduces the concept of rebuttable presumptions. In cases where a restriction would apply to the intentional use of a chemical or chemical class, the DoE would presume the presence of those chemicals based on either their detection, or the detection of an associated sub-component, within the respective product.  In the case of beauty and personal care products, listing of fragrances as an ingredient is also required to initiate the presumption. For example, a detectable total fluorine content would lead the DoE to presume PFAS use. The manufacturer could rebut this presumption by providing a statement to the DoE including supporting information that documents chemical content coming from a source other than the restricted substance(s).

173-337 WAC (DRAFT): PFAS Reporting Requirements and Restrictions

Remarks
1. The Department of Ecology presumes the detection of total fluorine indicates the intentional addition of PFAS

Table 1

173-337 WAC (DRAFT): Ortho-phthalates Reporting Requirements and Restrictions

Remarks
1. The Department of Ecology presumes the detection of ortho-phthalates, where the ingredients list does not identify ortho-phthalates, but does list fragrances, and indicates the intentional addition of ortho-phthalates used in fragrances

Table 2

173-337 WAC (DRAFT): Flame Retardants Reporting Requirements and Restrictions

Remarks
1. The Department of Ecology presumes that the detection of (A) total bromine concentrations above 1,000 ppm indicate intentionally added organohalogen flame retardants above 1,000 ppm, (B) total chlorine concentrations above 1,000 ppm indicate concentrations of intentionally added organohalogen flame retardants above 1,000 ppm and (C) total fluorine concentrations above 1,000 ppm without phosphorus indicate concentrations of intentionally added organohalogen flame retardants above 1,000 ppm
2. The Department of Ecology presumes the detection of (A) total bromine concentrations above 1,000 ppm indicate concentrations of intentionally added organohalogen flame retardants above 1,000 ppm, (B) total chlorine concentrations above 1,000 ppm indicate concentrations of intentionally added organohalogen flame retardants above 1,000 ppm and (C) total fluorine concentrations above 1,000 ppm indicate concentrations of organohalogen flame retardants above 1,000 ppm

Table 3

173-337 WAC (DRAFT): Alkylphenol Ethoxylates Restrictions

Table 4

173-337 WAC (DRAFT): Bisphenols Reporting Requirements and Restrictions

Remarks
1. The Department of Ecology presumes the detection of a bisphenol, excluding TMBPF, indicates the use of a bisphenol-based epoxy can liner

Table 5

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