DEC Dispatch: Protecting Human Health and the Environment from Hazardous Chemicals by Legislating Ingredients in Consumer Products
This edition of DEC Dispatch highlights the recent series of New York State legislation enacted to reduce exposure to harmful chemicals contained in everyday consumer products to protect human health and the environment. It also identifies public outreach and regulatory efforts the New York State Department of Environmental Conservation (DEC) is taking to implement these laws. In recent years, New York has led the nation by enacting laws that limit the permissible amounts of toxic chemicals in consumer and children’s products.
Many common household products, such as cleansing products, personal care and cosmetic products, furniture, mattresses, electronics, clothing, and certain children’s products contain harmful, toxic chemicals.1 These chemicals expose users of such products to toxins in a variety of ways, including direct contact with the product and through the leaching of the toxins into household dust, food, and the environment.2 Exposure to some of these chemicals has been linked to an assortment of health issues, including cancer, asthma, neurotoxicity, and impacts on behavioral development in children.3
New York’s recently enacted laws are aimed at reducing exposure to these toxins to prevent these health effects at the outset. When these products are disposed, they enter the waste stream, which causes the toxins to be emitted into the air, water, and soil. They enter either through disposal in landfills or, in the case of household cleaning and personal care products, down-the-drain disposal.4
Household Cleansing, Cosmetic, and Personal Care Products Containing 1,4-Dioxane
1,4-dioxane – known as one of the “forever chemicals” due to its persistence in the environment – is a synthetic industrial chemical.5 It has been widely used as a stabilizer in other chemical formulations but is also found as a byproduct or contaminant in certain consumer products, such as laundry detergent, deodorants, shampoos, soaps, and cosmetics.6 When household products containing 1,4-dioxane are disposed of down the drain, it is leached into the soil. Because of 1,4-dioxane’s biodegradation-resistant properties, it can travel rapidly through groundwater and ultimately make its way to drinking water systems or other waters.7
Pursuant to the Federal Safe Drinking Water Act (SDWA), EPA is required to issue a new list of unregulated contaminants every five years, to be monitored by public water systems.8 In 2012, the third Unregulated Contaminant Monitoring Rule (UCMR3) was published, requiring 28 chemicals, including 1,4-dioxane, to be monitored between 2013 and 2015.9 As a result, 4,400 water supply systems across the country were tested and Long Island was found to have some of the highest levels of 1,4-dioxane in the nation. This highlighted the need for New York State to take action.10
Exposure to 1,4-dioxane has been shown to cause damage to the central nervous system, liver, and kidneys. In addition, it has been classified by the EPA as “likely to be carcinogenic to humans by all routes of exposure,” linking exposure to tumors of the liver, gallbladder, nasal cavity, lung, skin, and breast.11 1,4-dioxane remains unregulated by the federal government; however, EPA recently released a Draft Supplement to the Risk Evaluation for 1,4-dioxane, which included findings of unreasonable risk.12 After public comments are considered, if any findings of unreasonable risk remain in the forthcoming final risk evaluation, EPA will need to engage in risk management activities, including rulemakings.
On December 9, 2019, New York amended its Environmental Conservation Law (ECL) to prohibit the sale of household cleansing, personal care, and cosmetics products that contain certain amounts of 1,4-dioxane.13 The law was amended to add a new section that prohibits the distribution, sale, offer, or exposure for sale in New York any household cleansing product that contains 1,4-dioxane, other than in trace amounts, not to exceed 2 parts per million (ppm) by December 31, 2022 and not to exceed 1 ppm by December 31, 2023.14 The amendments also require DEC, in consultation with the New York State Department of Health (DOH), to periodically “review such trace concentration thresholds and determine whether [they should] be lowered to better protect human health and the environment.”15 The new law further allows manufacturers of household cleansing products to apply to DEC for a one-year waiver from such requirements upon proof that the manufacturer has taken steps to comply with the thresholds, and thereafter apply for an additional one-year waiver, upon similar proof.16
Another new section was added that defines “cosmetic product” and “personal care product.”17 Further, the updated law now prohibits the sale or offer for sale of any cosmetic product containing 1,4-dioxane, other than trace amounts, not to exceed 10 ppm by December 31, 202218 and prohibits the sale or offer for sale of any personal care product containing 1,4-dioxane, other than in trace amounts, not to exceed 2 ppm by December 31, 2022 and not to exceed 1 ppm by December 31, 2023.19 As with household cleansing products, the law permits any manufacturer of a covered personal care or cosmetic product to apply to DEC for a one-year waiver from these requirements upon proof that the manufacturer has taken steps to comply with the thresholds and reduce the presence of 1,4-dioxane in the product, but is unable to comply with the law, and thereafter is permitted to apply for an additional one-year waiver for the product, upon similar proof.20 ECL was also amended to authorize civil penalties for violations of these statutory thresholds.21
On July 26, 2021, DEC issued a Program Policy (DMM-21-02) that established the process by which manufacturers of covered products may apply to DEC pursuant to the waiver process authorized by the amended law.22 The Program Policy provided the filing process and timeline, waiver renewals, and the proof required to substantiate the application.23 On October 1, 2021, DEC began accepting applications for waivers from the thresholds that went into effect on December 31, 2022. On January 1, 2023, DEC began accepting applications for waivers from the thresholds that will go into effect December 31, 2023.24 DEC is currently drafting proposed regulations to implement the amendments to ECL.
Toxic Chemicals in Children’s Products
Following a report, “A Call for Toxic-Free Children’s Products,” which identified a “dirty dozen” of children’s products, including children’s clothing, apparel, toys, and jewelry,25 the New York Legislature drafted the New York’s Child Safe Products Act, also known as the “Toxic Toys Bill.” Among some of the chemicals found in the tested products were arsenic in shoes and lunch boxes; antimony in clothing, jewelry, accessories, and dolls; cadmium in school supplies and accessories; cobalt in jewelry and accessories; and lead in jewelry, accessories, and footwear.26 Some of the chemicals found in children’s products, according to the report, “can cause cancer, trigger asthma, lower IQ, and damage vital organs.”27
On February 7, 2020, the bill was signed into law, amending ECL to require manufacturers to disclose the presence of chemicals of concern (COCs) and high-priority chemicals (HPCs) in children’s products offered for sale in the state.28 The law requires DEC, in consultation with DOH, to promulgate a list of COCs, including chemicals that have been linked to cancer, asthma, reproductive or developmental toxicity, endocrine disruption, and other health ailments.29 DEC, in consultation with DOH, is also required to periodically review the list of COCs. After such review, DEC is authorized to promulgate regulations to remove or add a chemical from or to the list, based on credible scientific evidence. The law also designates specific HPCs and requires DEC to periodically review that list, authorizing DEC to add chemicals to that list if the chemical meets certain criteria, and likewise may remove a chemical from the HPC list if, based on credible scientific evidence, DEC determines the chemical no longer meets the statutory criteria.30
Effective January 1, 2023, the law also prohibits the sale or offer for sale in the state any children’s product in which tris phosphate, benzene, or asbestos is intentionally added.31 DEC has held stakeholder meetings and is developing regulations to implement the requirements of this law.
Per- and Polyfluoroalkyl Substances (PFAS) in Various Consumer Products
PFAS in Food Packaging
Per- and Polyfluoroalkyl Substances (PFAS) were first used in the 1940s and are now found in hundreds of products for their oil-, grease-, and heat-resistant properties.32 Today, PFAS are used in cleaning products, fire-fighting foams, nonstick cookware, water-resistant clothing, personal care products, paints, food packaging, food processing equipment, and stain-resistant coatings in fabrics, upholstery, and carpeting.33 PFAS do not degrade easily and persist in the environment when disposed of or released into the environment, resulting in continuously increasing levels of PFAS contamination in the air, water, and soil.34 A study published in 2017 by Silent Spring Institute, found PFAS chemicals in 46% of food contact papers and 20% of paperboard of the 400 samples of fast-food packaging tested.35 The study concluded that “(t)he prevalence of fluorinated chemicals in fast food packaging demonstrates their potentially significant contribution to dietary PFAS exposure and environmental contamination during production and disposal.”36 PFAS exposure has been linked to kidney and testicular cancer, decreases in infant birth weights, changes in liver enzymes, and other harmful health effects.37
On December 2, 2020, the New York State Legislature amended the ECL to prohibit the sale or offer for sale in the state certain food packaging containing PFAS as intentionally added chemicals.38 The law came about, in part, due to recent water contamination cases in Hoosick Falls and Petersburgh, N.Y. In addition, the law intends to fill the gap in federal standards limiting the use of PFAS in products in which it is commonly found.39 Due to its non-sticking capabilities, many food packaging and food packaging components, including fast-food containers, microwave popcorn bags, and pizza boxes, contain PFAS.40
The proponents of this law hope to stop PFAS from leaching into food through its packaging, not only to protect people from consuming the chemical, but also to reduce PFAS contamination in the environment that happens through the disposal of such food packaging.41 Much like 1,4-dioxane, once emitted into soil, PFAS can move quickly to groundwater and be transported to numerous other areas, including into drinking water systems.42 The law also limits the liability of a manufacturer or distributor of a food product contained in certain packaging if that person “relied in good faith on the written assurance of the manufacturer of . . . [the food] packaging” – in the form of a certificate of compliance – that the packaging meets the requirements of the law.43
In September 2022, DEC hosted a webinar to answer questions about and share information related to the law.44 DEC has encouraged persons selling food packaging or food contained in food packaging to consult with the manufacturer or supplier of the packaging.45 DEC’s outreach efforts relating to the prohibitions of PFAS in food packaging are ongoing.
PFAS in Apparel
Following the ban of PFAS in food packaging, the state looked at other potential pathways to protect human health and the environment from PFAS contamination. In addition to the products discussed above, PFAS are also commonly found in clothing, shoes, and accessories for the purpose of making the product water and stain resistant.46 In addition to consumers being exposed to PFAS in apparel through direct contact with their skin and through ingestion, either during the manufacturing process or when apparel containing PFAS is disposed of, the chemicals can move quickly through the air, water, and soil, and eventually make their way into drinking water systems.47
On December 30, 2022, Governor Kathy Hochul signed into law amendments to the ECL to prohibit the sale or offer for sale in the state certain apparel containing PFAS as intentionally added chemicals.48 Specifically, the law states that, beginning January 1, 2025, “no person shall sell or offer for sale in this state any new, not previously used, apparel containing [PFAS] as intentionally added chemicals.”49 The law requires DEC to promulgate regulations that establish permissible levels of PFAS in apparel.50 The law will further prohibit the sale or offer for sale in the state any new, not previously used, outdoor apparel for severe wet conditions containing PFAS, either at a level established by DEC in regulation or as intentionally added chemicals beginning January 1, 2028.51 The statute defines “intentionally added chemical” as “a chemical in a product that serves an intended function or technical effect in the product or product component, including the PFAS within intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product or product component.”52
The law limits the liability of a retailer of any covered product if that person can show that they relied in good faith on the assurances of the manufacturer that such product complies with the provisions of the law, in the form of a certificate of compliance.53 More information on obtaining certificates of compliance is furnished to retailers on DEC’s website.54 Finally, on its website, DEC provides resources for consumers to find alternatives to apparel containing intentionally added PFAS55 and DEC is currently developing regulations to implement the requirements of this law.
Hazardous Chemicals in Upholstered Furniture, Mattresses, and Electronic Enclosures
Flame retardants are chemicals added to household items, such as furniture, mattresses, and electronics, to help prevent fires.56 Unfortunately, these same chemicals that are intended to prevent injuries to consumers and firefighters alike have been linked to adverse health effects including cancer and infertility, as well as inhibit fetal and child development.57 In addition to being detrimental to human health, these chemicals are also difficult to break down and, therefore, endure in the environment or home for many years.58
On December 31, 2021, New York enacted amendments to the ECL to prohibit the use of hazardous chemicals contained in flame retardants from being used in upholstered furniture, mattresses, and electronic enclosures.59 Beginning December 1, 2024, the law will prohibit the sale or offer for sale in the state any new, not previously owned, upholstered furniture or mattress containing any intentionally added, covered flame retardant chemical.60 Beginning December 1, 2025, any custom upholsterer in the state will be prohibited from repairing, reupholstering, re-covering, restoring, or renewing “upholstered furniture or reupholstered furniture using replacement components that contain any intentionally added covered flame retardant chemical.”61
Beginning December 1, 2024, the statute will prohibit the sale or offer for sale in the state “any electronic display that contains an intentionally added organohalogen flame retardant chemical in the enclosure or stand of . . . [the] display.62 The Legislature included a reporting statute which will require manufacturers of electronic displays to annually report to DEC all flame retardants used in the enclosure or stand of the electronic display, beginning one year after the effective date of the law in a form determined by DEC.63
On November 30, 2022, DEC published a Program Policy, DMM-6, which provided guidelines for how manufacturers of covered electronic displays must report the use of organohalogen flame retardants in their products.64 The newly enacted law also holds any person who violates the provisions liable for a civil penalty not to exceed $1,000 for each day during which the violation continues and to be enjoined from continuing such violation and a civil penalty not to exceed $2,500 for each day during which the violation continues.65
Mercury in Consumer Products
Mercury in Cosmetic and Personal Care Products
Mercury is an ingredient used in skin-lightening products – such as cosmetics and creams – used to fade dark spots and blemishes. However, it has also been marketed toward people of color to “perpetuate a beauty ideal based in colorism, which is the practice of showing preference to those of a lighter skin color.”66 Mercury is absorbed into the skin at a high rate and has numerous adverse health effects.67
On December 23, 2022, Governor Kathy Hochul enacted legislation to prohibit the sale of cosmetic and personal care products that contain mercury other than in trace amounts.68 Now, DEC is authorized to establish trace amounts in regulations; however, the law requires such trace amounts to “be consistent with the permissible concentrations of trace amounts allowed by the [FDA] as (a) unavoidable under conditions of good manufacturing practice, or (b) necessary for use as a preservative in the absence of an effective and safe nonmercurial preservative substitute in cosmetic products intended for use only in the area of the eye.”69 DEC is in the process of conducting outreach and education to the public and retailers selling personal care and cosmetic products containing mercury, as well as developing regulations to implement the law.
Mercury-Added Light Bulbs and Lamps
When a mercury-added lamp breaks, mercury is released, posing a health risk to humans and exposure to the environment. Following in the steps of the European Union and a handful of other states in the country, New York amended the ECL to prohibit the sale or distribution of mercury-added lamps that fail to meet mercury content standards to be adopted by DEC. The bill was signed into law on December 13, 2019.70 The law sets limits on the amount of mercury contained in specific general-purpose lights, which must be included in the standards adopted by DEC.71 DEC is drafting regulations that would adopt mercury content standards for mercury-added lamps.
Conclusion
New York has historically been at the forefront of environmental issues and has consistently enacted legislation to protect the natural resources of the state, as well as the health of its residents. These recently enacted laws, along with any corresponding DEC regulations, limiting or prohibiting toxic chemicals in consumer products are part of an ongoing effort to continue to protect the state and its citizens.
Abigail Sardino received her J.D. from Albany Law School. She is a senior attorney in the Minerals & Materials Management Bureau in the office of General Counsel at the New York State Department of Environmental Conservation in Albany.
Endnotes
7 Technical Fact Sheet – 1,4-Dioxane, EPA (Nov. 2017), https://nepis.epa.gov/Exe/ZyNET.exe/ [hereinafter Technical Fact Sheet]. [hereinafter Technical Fact Sheet].
13 Env’t Conserv. §§ 35-0105, 37-0117 (2022).
17 Id. §§ 37-0117(1), (2) (2023).
22 Dept. Env’t Conservation, Program Pol’y DMM-21-02 (2021).
38 Env’t Conserv. § 37-0209 (2022).
40 See, e.g., Per- and Polyfluoroalkyl Substances (PFAS), supra note 34.
41 A.B. A4739c, 2019-2020 N.Y. Leg. Sess.
43 Env’t Conserv. § 37-0211 (2022).
47 S.B. S6291A, 2021-2022 N.Y. Leg. Sess.
58 S.B. S4630B, 2021-2022 N.Y. Leg. Sess.
66 S.B. S8291A, 2021-2022 N.Y. Leg. Sess.
