Background: Under the Children's Safe Products Act (CSPA), DOE, in consultation with the Department of Health, must identify chemicals of high concern for children. A high-priority chemical:

harms the normal development of a fetus or child, or causes other developmental toxicity;
causes cancer, genetic damage, or reproductive harm;
disrupts the endocrine system;
damages the nervous system, immune system, or organs, or causes other systemic toxicity;
is persistent, bioaccumulative, and toxic; or
is very persistent and very bioaccumulative.

Under CSPA, manufacturers of children's products containing chemicals of high concern for children, are required, in part, to annually report product information to DOE. The notice must include:

the name of the chemical used or produced and its chemical abstracts service registry number;
a brief description of the product or product component containing the substance;
a description of the function of the chemical in the product;
the amount of chemical used; and
any other information the manufacturer determines is relevant to the appropriate use of the product.

DOE identifies, reviews, evaluates, and makes recommendations on the use and management of persistent, bioaccumulative, and toxic (PBT) chemicals. These chemicals remain in the environment for long periods of time, accumulate in the food chain, and are toxic to humans and wildlife. DOE has adopted rules for PBT chemical action plans (CAP) establishing criteria used to identify PBTs, procedures to develop a list of PBTs and periodically update that list, and the scope and content of a CAP. The purpose of a CAP is to provide general information about a PBT, its uses, impacts to the environment and human health, and to determine policy options and recommendations.

The Legislature has restricted and authorized DOE to implement regulations on the use of certain substances, compounds, and chemicals in consumer products impacting human health and the environment. These include:

PBDE flame retardants;
PFAS, lead, cadmium, and mercury in food packaging;
bisphenol A in food and beverage cans and bottles;
asbestos fibers, cadmium, chromium, lead and mercury in brake friction material, mercury in batteries, thermometers, thermostats, and fluorescent lights; and
PFAS in firefighting foam.

In addition, the Legislature has authorized DOE to implement a comprehensive framework for managing hazardous wastes and the release of hazardous substances. Hazardous substances include materials that are short-lived, toxic, and may cause death, injury, or illness, and substances that are persistent and present a significant environmental hazard, and are highly toxic to human beings or wildlife.

Summary of Bill: DOE must identify priority consumer products that are a significant source of or use priority chemicals. A priority chemical is defined as a chemical or class of chemicals used in consumer products including: PFAS, phthalates, organohalogen flame retardants, phenolic compounds, or PCBs. A priority chemical may also be identified by DOE, if the chemical is found to be a high priority chemical under CSPA, PBT, or the chemical is a concern for sensitive populations and sensitive species. To make a determination of a priority chemical, DOE must consider several factors about the chemical including: hazard traits, aggregate effects, cumulative effects with other chemicals with similar hazard traits, environmental fate, potential to degrade, impact on sensitive populations, and exposure.

To identify a priority consumer product, DOE must consider at minimum:

estimated volume of a priority chemical to, used in or present in the consumer product;
estimated volume or number of units of the consumer product sold in Washington;
the potential for exposure to the priority chemical by sensitive populations or species when the consumer product is used, disposed of, or has decomposed;
the potential for priority chemicals to be found in the environment, with priority given to surface water, groundwater, or other sensitive areas when the consumer product is disposed of or has decomposed;
if another state or nation has taken regulatory action to restrict the priority chemical in the consumer product; and
whether DOE has identified the consumer product in a CAP as a source of a priority chemical or in other reports or information gathered under regulations of hazardous substances.

Equal weight to each criteria is not required.

DOE may request information from manufacturers as required under the CSPA, within six months of the request.

DOE may not identify food or beverages, tobacco products, drug or biological products regulated by the FDA, or chemicals used to produce agricultural commodities as a priority consumer product. However, the packaging of these products may be identified as priority consumer products.

DOE must determine regulatory actions to increase transparency and reduce the use of priority chemicals in priority consumer products. The regulatory actions are:

no action is required;
require a manufacturer to provide notice of the use of the priority chemical; or
restrict or prohibit the manufacture, wholesale, distribution, retail sale, or use of a priority chemical in a consumer product.

DOE may restrict or prohibit a priority chemical in priority consumer products when it determines:

safer alternatives are feasible and available;
the priority chemical is not functionally necessary in the priority consumer product;
another state or nation has restricted the priority chemical; or
it is necessary to protect the health of sensitive populations or sensitive species.

The notice a manufacturer may be required to provide must be consistent with CSPA. DOE may also request a manufacturer provide a list of products containing the priority chemical, product ingredients, information regarding exposure and chemical hazard, and a description of the amount and function of the priority chemical.

By June 1, 2020 DOE must identify priority consumer products that are a significant source of or use of PFAS, phthalates, organohalogen flame retardants, phenolic compounds, or PCBs. DOE must determine regulatory actions for identified priority consumer products by June 1, 2022, and adopt rules to implement the regulatory actions by June 1, 2023.

Beginning June 1, 2024 and every five years thereafter, DOE must identify at least five priority chemicals, priority consumer products, determine regulatory actions, and adopt rules to implement the regulatory actions following a staggered five year scheduled timeframe. DOE must publish notice of identified priority chemicals and consumer products in the Washington State Register and provide an opportunity for public review and comment on the regulatory determinations.

Manufacturers may request the information provided to DOE be available only for confidential use. Proprietary information on manufacturing processes or chemical formulations used in products must be kept confidential.

A manufacturer in violation is subject to a civil penalty up to $5,000 for the first offense. Repeat violators are subject to a civil penalty not to exceed $10,000 for each repeat offense. Penalties may be appealed to the pollution control hearings board.

DOE is authorized to adopt rules to implement this act and must adopt rules to implement regulatory determinations.

Staff Summary of Public Testimony: PRO: This bill seeks to reduce the impacts of thousands of chemicals in commerce that affect the health of people and the environment. This provides tools to take action when it is determined actions need to be taken. This will help to identify pollution at its source. The evidence shows that restricting pollution at its source reduces levels in the environment. This is a systems approach and it is the logical next step to address chemicals of concern in consumer products. The health of marine waters and the aquatic environment is paramount. This is necessary to protect public health and safety by protecting the fish we eat. This bill would assist manufacturers and provide consumers with access to better products. National studies have demonstrated the significant health care costs to manage exposure toxins. These chemicals are ever present in our lives through personal care products, construction materials, and more.

CON: This would allow DOE to oversee another list of chemicals without public participation. This gives DOE a broad grant of authority over every product sold into the state. Existing laws need to be leveraged with current programs. The authority to restrict the use of chemicals should remain with the Legislature. There is no scientific consensus on the list of chemicals. This would unduly restrict manufacturers from using chemicals that have been in the marketplace for a long times.