Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com
Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected]
TSCA Reforms Won't Help With Calif.'s Product Safety Issues
Law360, New York (July 18, 2016, 11:25 AM ET) -Business groups largely supported the Toxic Substances Control Act (TSCA)
Amendments ― recently signed into law by President Obama — in order to address
concerns about the emergence of varying state-by-state requirements that regulate
the chemicals used in consumer products (see prior article). For businesses that wish
to avail themselves of California’s vast and lucrative marketplace, however, the
TSCA amendments may provide little aid in alleviating their headaches. As discussed
below, while the amendments include a number of federal preemption provisions,
those are riddled with holes that may allow California’s activist requirements and
plaintiffs lawyers to proceed largely unimpeded.
Robert L. Falk
Preemption under the TSCA Amendments
Subject to the exceptions discussed below, the amendments expressly preempt the
following:

State statutes and actions requiring information about a chemical
substance that is reasonably likely to produce the same information
otherwise required by federal law.

State statutes and actions prohibit or restrict the manufacture,
processing or distribution of a chemical for which the U.S.
Environmental Protection Agency has either:
Peter Hsiao
(i) Made a final determination that the chemical does not present an unreasonable
risk to human health or the environment, or
(ii) Promulgated a final rule where the EPA does find an unreasonable risk.

Statutes and actions requiring companies to notify a state before beginning a particular
use of a chemical (but only if the EPA already requires notification of that same use).
The amendments also contain an additional, albeit temporary, preemption “pause,” which takes effect if
and when the EPA defines the scope of its risk evaluation for a high-priority chemical. This preemption
prevents states from enacting prohibitions or other restrictions on the use of that high-priority chemical
substance during EPA’s review process, but it ends when the EPA publishes the risk evaluation (or when
a three-and-a-half year deadline for completion of a risk evaluation by the EPA passes, whichever is
earlier).
Exemptions from the New TSCA Preemption Provisions
The amendments’ new preemption provisions do not apply to:

Any state action taken pursuant to a state law (including actions taken in the
future) if that law was in effect on Aug. 31, 2003.

Any state action taken or requirement imposed to a subsequently enacted law
that prohibits or restricts a chemical substance, if that action was taken before
April 22, 2016.

Any state or federal common law or statutory right that creates a remedy for
civil relief (e.g., tort claims) or a penalty for a criminal conduct.
Exceptions to TSCA Preemption
State statutes and administrative actions are also not permanently or temporarily preempted if any of
the following conditions are met:

The purpose of the action is to address a different health or environmental risk
than the risk addressed by the EPA’s action pursuant to the TSCA.

The action implements a reporting, monitoring or other information obligation
that is not already required by the EPA.

The action is adopted under a state water quality, air quality or waste treatment
or disposal law.

The action is identical to an EPA requirement.

The action is authorized under the authority of another federal law.

The EPA has provided a waiver from the new TSCA preemption provisions.
Potential Impact on California’s Safer Consumer Products (Green Chemistry) Program
The new TSCA preemption provisions could halt or constrain the implementation of the California Safer
Consumer Products (SCP) program. The statute was enacted in 2008, and its initial requirements for
priority product-chemical pairings were not finalized prior to April 22, 2016, so at least certain types of
requirements arising from the SCP program could be subject to TSCA preemption.
Whether the TSCA amendments will kill or have a meaningful chilling effect on the future of the SCP
program, however, remains to be seen. For example, as long as the EPA has not taken any regulatory
action on a chemical, California will retain full authority to regulate a product that contains it. Moreover,
if the use of the chemical does not fall under the EPA’s TSCA jurisdiction, the SCP program’s actions
concerning it will never be preempted. (For instance, the TSCA does not cover personal care products or
beauty products.)
Indeed, although it may be tested in the courts, California’s requirement that manufacturers of products
designated as priority products provide the state with data and conduct an alternatives analysis pursuant
to the SCP program appears to be left unaltered by the new TSCA preemption provisions. Likewise, certain
forms of regulatory responses to an alternatives analysis on a priority product, such as mandating certain
warnings and/or other information disclosure requirements, may well be found to survive TSCA
preemption. Accordingly, California may be free to impose a regulatory response under the SCP program,
as long as it is not an outright prohibition or per se restriction on the use of a chemical.
Potential Impact on California’s Proposition 65
Proposition 65 requires businesses to provide a “clear and reasonable” warning before knowingly and
intentionally exposing a Californian to any detectable amount of a listed chemical, unless the business can
prove that the exposure level does not pose a significant risk of cancer or is at least 1,000 times below the
level that causes no observable reproductive effect. Public prosecutors are meant to be the primary
enforcers of Proposition 65, but the statute is mostly loathed because any individual claiming to act in the
public interest also has the ability to enforce it by filing “bounty hunter” lawsuits against manufacturers,
distributors and retailers of consumer products. The business is forced to choose between funding the
defense of the case or agreeing to a settlement in which the bounty hunter retains a percentage of
penalties and can obtain full reimbursement of their attorney’s fees and costs.
Relative to the TSCA amendments, California’s legislators, including retiring U.S. Sen. Barbara Boxer, DCalif., took pains to ensure that Proposition 65, a law California’s voters adopted in a 1986 ballot initiative,
remained fully protected from TSCA preemption. Thus, notwithstanding the TSCA amendments, California
can continue to update its list of Proposition 65 chemicals “known” in that state to cause cancer and
reproductive harm (including based just on studies of effects in laboratory animals) regardless of the
outcome of the EPA’s TSCA evaluation of the chemical’s risk. Proposition 65 bounty hunter lawsuits can
also continue to be filed concerning de minimus exposures to chemicals that the EPA considers to be safe.
That said, it still remains for the courts hearing these cases to determine if the EPA’s risk and safety
determinations made pursuant to the TSCA will have a significant role to play in a business’s defense of a
Proposition 65 claim on grounds other than preemption. Judges may also take such EPA determinations
into account when it comes to assessing (or reducing) Proposition 65 penalties. The TSCA’s preemption
provisions may also help convince courts that it is inappropriate to allow plaintiffs to continue to use
Proposition 65 to obtain chemical “reformulation” of products, instead of just requiring the California
warnings for them.
—By Robert L. Falk and Peter Hsiao, Morrison & Foerster LLP
Robert Falk is a partner in Morrison & Foerster's San Francisco office. Peter Hsiao is a partner in Morrison
& Foerster's Los Angeles office, where he is head of the firm's green products and chemicals team.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
All Content © 2003-2016, Portfolio Media, Inc.