Without question, the last two years have been a unique period here in the United States. Traditional politics based on bipartisan collaboration have been completely thrown out the door in favor of negative rhetoric, partisan rancor and seemingly-endless political gridlock.
For the first twenty-two months of Donald Trump’s presidency, the Republican Party had control of both chambers of U.S. Congress—the House of Representatives and the Senate. However, after the 2018 midterm election this past November, the Democratic Party has regained control of the House of Representatives. Furthermore, not only is the 116th Congress divided along party lines, but it is also younger and more diverse than ever, both in ethnicity and gender. With over 100 new Members of Congress, the Household & Commercial Products Association (HCPA) remains dedicated to educating the new lawmakers on the benefits of the aerosol industry and its significant impact on the U.S. economy. While there are many federal activities of interest to the aerosol industry, we will highlight just a few of the priorities HCPA will be focusing on in the coming year.
Typically, when Republicans control the different branches of the U.S. government, new legislation and regulatory initiatives tend to favor the business community’s commitment to economic expansion and job creation. While many of the federal government’s actions the last two years were intended to improve the U.S. economy, tariffs have, unfortunately, had the opposite impact. In 2018, President Trump imposed tariffs on steel and aluminum, which resulted in negative impacts for many industries, including the aerosol industry. These tariffs, which were issued on the premise of national security concerns, caused many of the country’s allies and largest trading partners to issue retaliatory tariffs of their own. HCPA has been proactively and aggressively advocating against these tariffs since they were announced, and we will continue to do so in the coming year.
We hope to build upon the work we did in 2018, which included: sending letters to President Trump, the Commerce Secretary, and the U.S. Trade Representative (USTR); working with allied trade associations through various coalitions; voicing our opinion through editorials in the consumer and trade media; and hiring a highly-respected bipartisan advocacy firm to enhance our own internal lobbying efforts.
HCPA’s Work with the EPA
The U.S. Environmental Protection Agency (EPA) has also been busy the last few years as it implemented the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, which overhauled the U.S. Toxic Substances Control Act (TSCA) program for the first time in 40 years. Of all the changes made to TSCA, the most important and impactful aspect to the chemical industry was issuing the final Fee Rule. In October 2018, EPA issued its Fee Rule, which allows the agency to collect TSCA user fees to either cover up to at least 25% of costs associated with TSCA implementation or $25 million, whichever is lower.
HCPA’s President & CEO and EVP of government relations and public policy, along with members of the HCPA Executive Committee joined EPA’s Acting Administrator, Andrew Wheeler, as he signed the finalized Toxic Substances Control Act (TSCA) User Fees Rule at EPA headquarters in Washington, DC.
For the aerosol industry specifically, the most important update has been EPA’s work on the risk assessments of the first ten priority chemicals. This activity will continue into 2019; we expect EPA to meet their statutory deadlines and complete the risk evaluations for these chemicals which include 1-Bromopropane, 1,4-Dioxane, Methylene Chloride, n-Methylpyrrolidone, Perchloroethylene, and Trichloroethylene. The EPA will also be designating at least twenty new high priority chemicals and twenty low priority chemicals for additional assessment in 2019. HCPA has provided feedback to the EPA during every step of the initial risk evaluations and we expect to continue providing comments as the evaluation process continues to evolve.
EPA is also expected to finalize their rule regarding the addition of aerosol products to the Universal Waste Regulations. Under the current Resource Conservation and Recovery Act (RCRA), aerosol products that are not empty must be disposed of as hazardous waste. The updated rule will allow manufacturers, distributors, and retailers to dispose of damaged or partially-filled aerosols as universal waste, which is less burdensome and costly than hazardous waste.
HCPA has been encouraging EPA’s Office of Resource Conservation and Recovery (ORCR) to provide more flexibility to manufacturers and retailers and to minimize the regulatory burden and costs associated with disposal of aerosol products. Since 2014, we have actively met with EPA and provided input on multiple occasions, helped develop statements supportive of EPA’s proposed rule in 2018, and provided a few additional suggestions that could further improve the rule for the industry.
HCPA is also working with allied trade associations to harmonize the U.S. Hazardous Materials Regulations (HMR) with applicable international regulations; this is specifically with regard to the classification, testing, and transport of aerosol products. We are also working towards the modernization of regulations found within the HMR. This specifically relates to modifying the technology requirement of the hot water bath test to performance-based; this potential modification would allow the water bath test to be the baseline and any alternative technology that provides an equivalent or better performance would also be allowed. By working with our allies in Europe, such as the European Aerosol Federation (FEA) and the British Aerosol Manufacturers Association (BAMA), we hope to learn from their experiences and expertise to help us further advance these policy positions.
In the upcoming year, we are also expecting the Occupational Safety and Health Administration (OSHA) to propose updates to their hazard communication standard from GHS revision 3 to revision 7, so HCPA will be actively developing feedback with member companies on the proposed standard.
Activity at the State-Level
While we currently have a divided federal government, 37 U.S. states are under single-party control. This likely indicates that legislative and regulatory activity will move quickly. HCPA will continue to monitor all activity to ensure that legislation and regulation which would negatively impact our industry is not passed or promulgated. With that in mind, we are projecting a few interesting activities and impacts on the aerosol industry this year.
Looking further back to 2017, HCPA led industry negotiations with California-based and environmentally-focused NGOs (non-governmental organizations) and the resulting compromise led to the Cleaning Product Right to Know Act of 2017 signed into law by then Governor Jerry Brown. This law requires cleaning products sold in California to list ingredients on product labels and provide additional ingredient information on products’ websites.
The result of the nearly year-long legislative negotiation is a workable law that provides important information to consumers who seek enhanced transparency when purchasing and using cleaning products in their homes and businesses, while protecting confidential business information of the manufacturers. The first deadline for this law comes at the end of 2019, so companies will need to begin to disclose appropriate product ingredient information on their websites. HCPA and other allied trade associations will support similar laws regarding ingredient communication in other U.S. states.
In 2018, the New York State Department of Environmental Conservation (NYSDEC) launched its Household Cleaning Product Information Disclosure Program, which requires manufacturers of cleaning products to disclose chemical ingredients, as well as other information, on their websites by July 1, 2019. This program includes unworkable provisions beyond the requirements in the California law, so HCPA and allied associations filed litigation to stop the NYSDEC from implementing this program.
Because of this litigation, the Office of the New York Attorney General asked for additional time to get their response into the court and, in exchange for additional time, the NYSDEC has agreed to push back the July 1 compliance date to October 1. This is likely not the end of proposed legislation relating to ingredient communication, so HCPA will stand watch and vigorously work to ensure no states adopt requirements that go beyond California’s landmark law.
An Increased Focus on Air Quality
Beyond ingredient communication, there is also going to be a flurry of activity in 2019 regarding air quality in the country. Many states have adopted volatile organic compound (VOC) regulations that are stricter than federal government regulations—but none as strict as California. In December 2018, the California Air Resources Board (CARB) released their three-year data report, which detailed an overview of the 491 product categories. With over 1,500 household and commercial products manufacturers, formulators, and marketers participating, this study provided CARB with product sales and chemical formulations for over 300,000 products sold in California. In 2019, HCPA and member companies will be reviewing and discussing the draft summary data and supplemental materials, which will help formulate feedback that will be submitted to help CARB ensure that the data is as accurate as possible. HCPA has been working with CARB staff on their Consumer Products Regulations for more than thirty years. This work is critical for our member companies, as the data will help shape future volatile organic compound (VOC) regulations issued by CARB (and ultimately followed by other states).
Companies spend significant resources and time to develop formulations to comply with VOC regulations, which under California law must be commercially and technologically feasible and based on accurate data. Colorado will be going through a similar legislative process in 2019 to adopt VOC regulations on consumer products; these are ultimately based off of CARB’s regulations, but HCPA will be working with Colorado and any other state that wishes to do so.
Furthermore, discussion on air quality, and specifically on hydrofluorocarbons (HFCs) that have a global warming potential (GWP) of greater than 150, continues. In 2015 and 2016, the EPA issued rules to reduce HFC use and emissions through their Significant New Alternatives Policy (SNAP) program; these actions were separate from the Paris Agreement. In 2017, the U.S. Court of Appeals for the District of Columbia Circuit reversed the first rule, finding that the EPA exceeded its authority under the Clean Air Act with the elimination of some uses of HFCs. Due to the litigation around HFCs and actions by the EPA, the industry was left with a lack of regulatory certainty on HFC use in aerosol products. The first state to attempt regulation was California; they passed SB 1013, the California Cooling Act, in 2018.
Subsequently, other states have announced or have started working to adopt similar legislation or regulations in 2019. While a federal solution would be preferable, we applaud states for acting. HCPA supports a consistent approach to lower HFC emissions and believes state action can help create the regulatory certainty that is needed in today’s marketplace.
Talk to Us!
2019 is going to be another interesting and busy year for the aerosol industry and this is only a cursory overview of the upcoming challenges coming our way. It is critical to develop and sustain relationships on both sides of the political aisle, regardless if a state or the federal government is under single-party control or is divided. The aerosol industry must always be nimble in order to adapt to new political climates, even the one as unique as today’s here in the U.S. HCPA is looking forward to 2019 and, should you have any questions or concerns related to the aerosol industry, I encourage you to reach out to me at firstname.lastname@example.org.