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Trade Associations Criticise Implementation of Vermont's Reporting Requirements for High Concern Chemicals

The state of Vermont in June 2014 enacted into law legislation that requires state authorities to regulate chemicals of high concern to children. The legislation requires manufacturers of children’s products (or a trade association representing a manufacturer of children’s products) to submit beginning on 1 July 2016 and bi-enially thereafter a notice to the Vermont Department of Health describing any high-concern chemicals (i) intentionally added to a children’s product produced by that manufacturer at a level above its practical qualification limit (i.e., the lowest concentration that can be reliably measured within specified limits of precision, accuracy, representativeness, completeness and comparability during routine laboratory operating conditions) or (ii) present in a children’s product produced by the manufacturer as a contaminant at a concentration of 100 parts per million or greater. Manufacturers will be required to pay a US$200 fee for each required notice.

The term “children’s product” encompasses such items as toys, children’s cosmetics, children’s jewellery, child car seats, and products designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation or the feeding or a child, or to be worn as clothing by children.

Vermont authorities will be able to prohibit the sale or distribution of a children’s product containing a high-concern chemical or require that product to be appropriately labelled upon a determination that children will be exposed to that chemical and there is a probability that such exposure could cause or contribute to one or more of several adverse health impacts. No prohibition on the sale or manufacture of a children’s product containing a high-concern chemical would take effect sooner than two years after the adoption of a rule to that effect unless Vermont authorities believe that an earlier effective date is required to protect human health. Vermont would be able to exempt from regulation a children’s product containing a high-concern chemical if the manufacturer is implementing a comprehensive chemical management strategy designed to eliminate harmful substances or chemicals from the manufacturing process.

A group of trade associations that includes the American Apparel & Footwear Association, the American Chemistry Council, the Consumer Electronics Association, the Toy Industry Association and the National Council of Textile Organizations on September 10 wrote to the Vermont General Assembly’s Legislative Committee on Administrative Rules to express their concern about the proposal issued by the Vermont Department of Health to implement the requirements on chemicals of high concern to children. Issues of concern outlined in the letter include:

  • requiring brand and product level data that would be unduly burdensome in cost and administration without providing sufficient public benefit;
  • the failure to provide phased-in initial reporting deadlines and other provisions to provide reasonable and practical accommodation, especially for smaller manufacturers; and
  • the failure to address key issues and provisions relevant to initial compliance or to provide assurances that they will be addressed in time to be incorporated in initial compliance.

The letter notes that although the Vermont legislature intended the regulations to be as consistent as possible with those of other states, especially Washington, the proposed rule “fails to comply with this intent and runs counter to this purpose, most notably by requiring brand and product level reporting data and failing to adopt a phased-in initial reporting schedule.” The associations add that the requirement of brand and product level reporting, the failure to provide a phased-in initial reporting schedule, and the failure to address key implementation and compliance provisions are not mandated by Act 188 and create unnecessary cost and administrative burdens and uncertainty that are not justified by any sufficient corresponding public benefit. The associations also believe that the proposed rule “clearly imposes economic burdens that are not required by the law.”


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