Developments in State Chemicals Policy:
Identifying and Regulating Priority Chemicals
Washington
Washington law requires the state to identify chemicals of high concern for children and requires manufacturers of certain children's products to report annually on those chemicals. Revised Code of Wash. §§70A.340.010--040. The state has promulgated rules implementing the law. Wash. Admin. Code (WAC) §§173-334-010--130.
Designation of priority chemicals .The law requires the Department of Ecology to identify "high priority chemicals" that are of high concern for children due to the potential for exposure. High priority chemicals are defined as those known: to be persistent, bioaccumulative, and toxic; to be very persistent and very bioaccumulative; or to cause developmental toxicity, systemic toxicity, cancer, genetic damage, reproductive harm, or endocrine disruption. For a chemical to be included, one of the following criteria must apply: biomonitoring studies indicate a chemical's presence in the human body; sampling and analysis indicate the chemical's presence in the indoor home environment; or the chemical is present in a household consumer product. Rev. Code Wa. §§70A.430.010(9), .040. The Department's rules implementing the law establish a list of Chemicals of High Concern to Children (CHCC). The rules also include a provision for individuals to petition to add or removal a chemical from the list. WAC §§173-334-010--130. In response to petitions, the Department amended the list in October 2013 to add one chemical (tris (1,3-dichloro-2-propyl) phosphate) and remove one chemical (n-butanol); in 2017, the department added 20 chemicals to the list and removed three chemicals. WAC § 173-334-130.
A 2016 amendment to the law directed the state to study six flame retardant chemicals for possible inclusion in the list. All six of these chemicals were added in 2017.
In 2019, the state passed a law requiring the Department of Ecology, in consultation with the Department of Health, to designate at least five “priority chemicals” by June 2024 (and every five years thereafter). Rev. Code Wa. 70A.350. For a chemical to be included, one of the following criteria must apply: the chemical is identified by the Department to be a high priority chemical of high concern for children, or to be a persistent, biaccumulative toxin; the chemical is a “hazardous substance” under state law; or the Department determines that the chemical or members of a class of chemicals “are a concern for sensitive populations and sensitive species,” after considering factors including (but not limited to) the chemical’s aggregate effects and the potential for the chemical to contribute to or cause adverse health or environmental impacts.
In addition to chemicals designated via this process, “priority chemicals” are defined in the law to include perfluoroalkyl and polyfluoroalkyl substances; phthalates; organohalogen flame retardants; flame retardants, as identified by the Department under chapter 70A.430.030-.060 Rev. Code. Wa.; phenolic compounds; and polychlorinated biphenyls.
The 2019 law also requires the Department to identify every five years “priority consumer products that are a significant source or use of priority chemicals.” When identifying such products, the Department must consider, among other factors, the “potential for exposure to priority chemicals by sensitive populations or sensitive species when the consumer product is used, disposed of, or has decomposed.” Certain categories of consumer products, including food and beverages (but not their packaging), are exempt from identification. Rev. Code Wa. 70A.350.030.
Regulation of priority chemicals. Manufacturers must file annual notices with the Department of Ecology if their children's products contain a high priority chemical. Rev. Code Wa. §70a.430.030-.080. The Department's rules provide that this notice is required for each chemical on the CHCC list that is either: an intentionally-added chemical at concentrations above the Practical Quantification Limit; or a contaminant present at concentrations above 100 ppm (unless the manufacturer meets certain stated conditions). WAC §173-334-080. The regulations establish the content of the annual notice, which includes information about the function and the total amount of the chemical in the product. Information in notices that is not deemed confidential business information is publicly available. WAC §173-334-080. Reporting on the list of CHCCs as amended in 2017 is required beginning in 2019, and the rules establish enforcement mechanisms, including a civil penalty provision. WAC §§173-334-100, 120.
The law also required the Department of Ecology to submit to the state legislature a report that discusses implementation of the law and includes policy options for addressing children's products that contain chemicals on the CHCC list. Rev. Code Wa. §70A.430.040.
The 2016 amendment to the law prohibits five flame retardants (which the state had previously listed) from being used in children’s products or residential upholstered furniture.
The Department of Ecology is required to “determine regulatory actions to increase transparency and to reduce the use of priority chemicals in priority consumer products” every five years. The Department may: determine that no action is currently required; require a manufacturer to provide notice of the use of a priority chemical or class of priority chemicals; or “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.” The Department must adopt rules to implement such actions according to a schedule established in the rules. Rev. Code. Wa §§ 70.365.040, .050. A manufacturer violating a requirement of the law, or a rule or order adopted under the law, is subject to a civil penalty. Rev. Code. Wa §§ 70.365.070.
See the Department of Ecology’s Children’s Safe Product Act page for additional information.
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