California Product Regulatory Pitfalls for Manufacturers and Distributors

Transcription

1 September 17, 2014 California Product Regulatory Pitfalls for Manufacturers and Distributors LAURA M. DUNCAN SAN FRANCISCO, CA This webinar is designed to provide you with information regarding current trends. It is not intended as, nor is it a substitute for, legal advice. Please consult with legal counsel for advice specific to your circumstances.

2 Overview Increasing product-focused regulatory requirements Environmental, health and other purposes California regulation and enforcement robust Many product requirements apply to retailers and distributors as well as mfgs/importers Today: survey of common California pitfalls 2

3 Registration or Reporting Material Restriction or Labeling Product Fees EPR Other Pesticides (DPR) Proposition 65 (OEHHA; AG and private plaintiffs) Pesticide Mill Tax (DPR) Paint, Carpet, Mattresses (Industry Administered) RPPCs (CalRecycle) Controlled Chemicals (DOJ) Product VOC Limits (CARB & Districts) Ewaste ARF (CalRecycle & BOE) Beverage Container Take-back (CalRecycle) CA Green Chemistry /SCP Regulations (DTSC) Beverage Manufacturer or Distributor (CalRecycle) Composite Wood ATCM (CARB) Beverage Container CRV (CalRecycle) Rechargeable Batteries (DTSC) Energy Efficiency (CEC) Aftermarket Parts Non-Road Engines (CARB) Toxics in Packaging, etc. (DTSC) Tires, Motor Oil, etc. (CalRecycle & BOE) Cell Phones (DTSC) Environmental Marketing Claims (DAs & plaintiffs) 3

4 CA Pesticides (DPR) Scope (includes adjuvants) Product registration, in addition to federal Dealer/broker registration Enforcement Manufacturers/registrants: registration, misbranding, mill taxes for sales in state Distributors/retailers: sale of unregistered pesticides; mill tax assessments Similar issues for fertilizers (CDFA) 4

5 Controlled Chemicals (DOJ) California permits and notifications for controlled chemicals CA H&S Code section 11100(a); e.g., iodine, ephedrine, pseudoephedrine, sodium hypophosphite, morpholine, gamma-butyrolactone, etc. Permits for manufacturer, wholesaler, retailer Notification required prior to transfer; export Enforcement permit revocation 5

6 Beverage Manufacturer/Distributor (CalRecycle) California Redemption Value (CRV) CalRecycle requires registration of distributors and manufacturers to ensure that redemption value and processing fees are collected Enforcement prospects 6

7 Aftermarket Parts, Non-Road Vehicles & Engines (CARB) AMPs - CA Vehicle Code prohibits modifications that increase motor vehicle emissions Parts that modify emission control systems must receive exemption (EO) from CARB Manufacturers and retailers Non-road vehicles and engines CA EO req d Lawn & garden, recreational vehicles, generators Major enforcement (some joint CA and EPA) 7

8 Proposition 65 (OEHHA, AG & plaintiffs) Warning requirement, not material restriction Recent enforcement Lead, DEHP, Cocamide DEA, TDCPP; DINP upcoming Changes in warning regulations in progress Identification of certain chemicals on labels May contain vs. Can expose Instructions to reduce potential exposure 8

9 Consumer Product VOC Limits (CARB & Districts) Consumer products (e.g., cleaning, beauty, hair, auto, aerosols, solvents, air fresheners); coatings EPA also sets VOC limits, but fewer product categories and only apply to mfgs, importers & distributors CA limits apply to more products, more stringent, and include retailers; added layer at District level April 2014, $400k settlement automotive products distributor; multimillion$ settlements coatings and solvents in past four years 9

10 Composite Wood ATCM (CARB) 2008 CA law addressing formaldehyde in composite wood products Requirements apply to manufacturers, distributors, importers, fabricators, and retailers EPA proposed regulations CARB proposed amendments to CA regulations, but will await EPA action 10

11 CA Toxics in Packaging (DTSC) 2003 law, took effect in 2006 Prohibits packaging with intentionally introduced cadmium, mercury, or hexavalent chromium Sets 100 ppm limit on incidental level of the metals Very little enforcement, but risks remain 11

12 CA Product Fees Pesticide mill ($0.021 per $ sale); frequent DPR audits; consumer products, industrial chemicals, pool supplies, pet supplies, santitizers Applies to first sale in California Ewaste Advance Recovery Fee $3/4/5 (BOE) Classification of covered electronic devices Beverage container CRV $0.05/$0.10 (CalRecycle) Tires, motor oil, etc. 12

13 Take-back Extended Producer Responsibility Paint, carpet, mattresses (Industry managed stewardship plans) Acceptance and refund of beverage container deposits Dealers required to take back if located in an unserved convenience zone July 2014 notice on new convenience zones Take-back of used rechargeable batteries and cell phones Retailer must have a system for acceptance and collection of used rechargeable batteries and cell phones (at no cost to consumer) 13

14 Rigid Plastic Packaging Containers (CalRecycle) Requirements apply to RPPCs or any product packaged in a RPPC Is it an RPPC? Compliance Options 25% postconsumer material content Source reduction (reduce weight, increase concentration, compare to similar products) Reusable RPPC/Refillable RPPC Particular type/product/resin recycling rate Alternative: product mfg. consumes postconsumer material generated in CA in the mfg. of RPPCs or other plastic product or packaging >25% Compliance Cycle precertification notices in January

15 CA Green Chemistry / SCP Regulations (DTSC) Statute seeks alternatives/safer consumer products; regulations outline process for identifying priority products and alternatives analysis Initial three draft priority products 1. SPF containing unreacted diisocyanates 2. children s foam padded sleeping products containing TDCPP 3. Paint/varnish strippers and surface cleaners with methylene chloride Three-Year Work Plan announced this week comments open 1. Beauty, Personal Care and Hygiene Products 2. Building Products: Paints, Adhesives, Sealants, and Flooring 3. Household, Office Furniture and Furnishings 4. Cleaning Products 5. Clothing 6. Fishing and Angling Equipment 7. Office Machinery (Consumable Products) 15

16 CA Appliance Efficiency Regulations (CEC) CA Energy Commission Appliance Efficiency standards Include standards for both federally regulated and non-federally regulated appliances Apply to appliances sold or offered for sale in CA (except wholesale for final retail sale outside CA) or those designed exclusively for recreational vehicles or other mobile equipment Certification to CA standards required for market access 16

17 CA Green Marketing Claims Potential inconsistency between California law and FTC Green Guides (e.g., FTC opposes unqualified biodegradable claims; California law prohibits any biodegradable claims for plastic products) CA Public Resources Code section 42357(b) Plastic product means a product made of plastic (and also includes plastic packaging/packaging components, plastic bags, sheets, or wrap, and plastic food and beverage containers) Enforceable by city/county attorneys or AG 17

18 Thank You LAURA M. DUNCAN TEL. (415)