Alert: DTSC Begins Education and Outreach Campaign to Prompt Greater Awareness and Compliance with the Toxics in Packaging Prevention Act
If your company uses, imports, or manufactures packaging or packaging components, this client alert will be of interest to you. With all the news recently of toys containing lead arriving from China, and regardless of whether you deal with those specific products, you may want to ensure that your various packaging and/or packaging components are in compliance with a recently implemented California law prohibiting certain heavy metals in packaging.
As California's Toxics in Packaging Prevention Act ("TPPA" or the "Act") approaches its two year implementation anniversary, the Department of Toxic Substances Control ("DTSC") is launching a more active outreach and education campaign to inform manufacturers, suppliers and purchasers of their obligations under the Act. Patterned after the Toxics in Packaging Clearinghouse ("Clearinghouse") model national legislation, California's TPPA went into effect on January 1, 2006 and aims to eliminate four heavy metals from packaging and packaging components. This is accomplished by banning all cadmium, lead, mercury, or hexavalent chromium which is "intentionally introduced" into packaging and packaging components, as well as any which is "incidentally" introduced in quantities greater than 100 parts per million. The statute requires that manufacturers and suppliers provide "Certificates of Compliance" to the purchaser of the packaging or packaging components, stating that the packaging product is in compliance with the statute or that the product falls under one of the detailed exceptions. These Certificates of Compliance are to be retained by the purchaser.
The TPPA applies broadly to all packaging and packaging components which are manufactured, bought, sold, or imported into California. The "packaging" definition is expansive and applies to more than just traditional boxes or packages that reach the end-consumer. It includes large shipping containers, shopping bags, cups, trays and similar items. Packaging component is also defined broadly and includes the inks and dyes, cushioning, adhesives, and similar items. The TPPA contains a fairly extensive list of exceptions to the Act, however, they are all very narrowly drawn, require detailed documentation in order to provide coverage, and many will expire in 2010. Use of an exemption requires a number of steps to prove that it applies and information about its use must be provided directly to DTSC (whereas those in compliance must only provide their Certificate of Compliance when requested by the agency). These individual requirements can raise numerous interpretative issues for newly-regulated entities.
Until recently, DTSC, the California agency tasked with implementing the TPPA, has not taken a hard line enforcement approach, but rather has focused on educating regulated parties of their duties under the Act. However, since November 2007, DTSC has begun taking a more active role in this effort by sending out over 2,000 letters, requesting that manufacturers provide the agency with copies of their Certificates of Compliance. While the DTSC staffer responsible for enforcing the Act notes that this is still primarily an outreach and education effort, the individuals who receive the letters will have to prove their compliance. Though DTSC is largely seeking to encourage compliance without taking enforcement actions, failure to comply with the Act could ultimately result in penalties of up to $25,000 per-violation-per-day, as well as an order enjoining production or distribution of any product not in compliance with the Act.
There are also eighteen other states which have enacted similar laws using the Clearinghouse model, and while it appears that none are aggressively enforcing the statute, there has been a renewed interest in compliance assessment testing methods, which may lead to stricter enforcement by other states. A number of questions have arisen about the appropriate methods of testing for the metals regulated by these laws, with hexavalent chromium proving particularly difficult to test for. It is anticipated that, once California ramps up its program, other states may follow. At the start of 2008, the Clearinghouse is also going to be conducting a second round of random testing of certain packaging products which it is currently gathering. In 2005, when the Clearinghouse conducted similar testing, it found wide-spread non-compliance, and in some cases the Clearinghouse forwarded the results to the individual states where the products were purchased for possible enforcement actions.
In light of DTSC's recent issuance of letters requesting copies of Certificates of Compliance from certain entities, this is a good time for manufacturers and suppliers to ensure that their products are in compliance with the Act, and that they are providing compliance certificates to their customers. The statute also requires that these certificates be made available to the public. Thus, companies should also consider whether the information in their circulated Certificates could raise compliance issues under other regulatory schemes, such as California's Proposition 65. Similarly, purchasers who acquire pre-manufactured packages (bags, boxes, containers, and similar packaging) should be sure to obtain Certificates of Compliance from the packaging manufacturer or supplier for each package or component which it uses. To assist in this process, DTSC has recently posted additional information and some industry-specific fact sheets on its website, which can be found at: https://dtsc.ca.gov/toxics-in-products/toxics-in-packaging/. The Clearinghouse has also recently posted several fact sheets and has issued a document titled "Quality Assurance Considerations for Toxics in Packaging", which outlines some steps for ensuring compliance. These materials are available online at: https://toxicsinpackaging.org/model-legislation/fact-sheet/