Some retail products are regulated by the EPA or other agencies based on potential impacts of the products on the environment or public health. Regulations may include restrictions on certain chemicals in products or packaging, product labeling or disclosure requirements, regulation of product emissions, performance standards, product registration or certification requirements, product take-back, or other requirements. Product regulations encompass a broad set of laws and legal requirements, and can include federal, state, and local requirements. This summary does not cover Consumer Product Safety Commission requirements, which also regulates certain aspects of product safety and chemicals in products.
Several major relevant product areas and associated regulations are listed below. Note, however, that this summary is not exhaustive.
Many retailers depend on their suppliers (manufacturers, importers, and/or wholesalers) to provide products that comply with product laws. However, under some laws, the retailer may be subject to enforcement for selling non-compliant products even if the supplier indicated that the product was compliant. Given the potential risk to retailers, it is critically important for a retailer to understand the applicable regulations and use reliable suppliers. Contract language putting the compliance burden on your vendors may give you basis for an action against them should they provide non-compliant products. However, depending on the location and situation of the supplier, these provisions may be difficult to enforce, and the existence of an indemnity generally does not relieve the retailer from its responsibility to respond to an agency enforcement action.
The EPA regulates pesticides, including registration, labeling, and other management requirements, under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and its implementing regulations at 40 CFR 152. There are also state and local pesticides requirements (including separate state registration requirements and a special mill assessment in states such as California on the first sale of a pesticide into or within the state). The National Pesticide Information Center provides a list of relevant local and state agencies. Private label products and retailer-created descriptions and advertising copy all create specific and complex compliance obligations for retailers under FIFRA and parallel state programs.
Any product that claims to control, repel, or mitigate any pest (including but not limited to bacteria, mold, mildew, algae, etc.) is considered a pesticide and is regulated under FIFRA. This means that in addition to pesticides such as bug killers and rat poison, some household products such as bleach, sanitizers, disinfectants, products that claim to kill germs on surfaces other than the human body, and insect repellants are also pesticides. Devices designed to kill or repel pests such as fly traps, high frequency sound generators, and mole thumpers are also regulated under FIFRA (the requirements differ from requirements applicable to pesticides generally), but human powered devices such as fly swatters are not covered. Product claims made in retailers' advertising copy can also bring products they sell within the scope of FIFRA, even if the product manufacturer did not intend the product to be used as a pesticide.
A few pesticides such as garlic oil, lauryl sulfate, and corn gluten meal are considered "minimum risk" and are exempt from federal regulations. The EPA maintains a list of ingredients in this category. However, these pesticides may still be regulated at the state level.
As a retailer, you should be sure that:
- Any pesticides that you offer for sale are registered with the EPA (and registered in the states where they will be sold). The National Pesticide Information Retrieval System (NPIRS) maintains a list of federally registered products.
- Pesticides are labeled with an EPA approved label.
- Restricted use pesticides, which may only be used by licensed and certified pesticide applicators, are not sold to consumers
- Making advertising or promotional statements about pesticide uses of a non-registered product or recommendations on usage that differ from the label instructions is avoided.
Under federal law, recalled, unused, or expired waste pesticides may be managed as universal waste, which is a subset of hazardous waste (the RCC Hazardous Waste page has more detail). However, retailers should consult state laws to confirm that they also allow management of these recalled or expired pesticide products as universal wastes. If a pesticide is returned, retailers should pay special attention to determine whether it is appropriate for resale. If the product has been opened and used (i.e., some of the product is missing), or if the label is damaged or obscured, then the product is not appropriate for resale. Retailers should not attempt to attach new labels or repair pesticide containers unless they are registered with EPA as pesticide producing establishments and/or the retailer submits a written proposal to EPA, and EPA approves the specifically defined proposal to make such container repairs. See the Pesticide Container Repair Interim Policy for more details.
Toxic Substances Control Act (TSCA)
TSCA is the federal statute for regulating chemicals in the United States. TSCA may apply to retailers when they import a chemical (and thus, under TSCA, become a manufacturer). Retailers who import a chemical must make sure that the chemical is on the EPA's TSCA Inventory or is exempt from being listed. Registered chemicals can be found on EPA's TSCA Search. EPA imposes additional requirements on some chemicals under the TSCA significant new use rule (SNUR), and importers must comply with the SNUR rules, including submitting a significant new use notice 90 days before importing the chemical.
In most cases, TSCA applies to just chemicals, but in some cases EPA has also applied TSCA to manufactured articles that contain or were made with certain chemicals. This has been done for some flame retardants and dyes. EPA can also ban or restrict chemicals and their use in products. For example, several asbestos containing products are banned (although some such as brake pads and linings are still allowed), and lead-based paint is banned.
State Chemical Management
California's Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act, requires the state to keep a list of chemicals known to the state to be carcinogens or reproductive toxicants. Although Proposition 65 does not ban or restrict the presence of any chemical, a company that manufactures, distributes, sells, or supplies products that may expose consumers to a chemical on the list must provide a clear and reasonable warning for the product, unless they can demonstrate that the exposure is below a "safe harbor exposure level." California also regulates certain product and chemical combinations identified by regulation as "priority products" under the California's Safer Consumer Products Regulation.
Several other states have their own green chemistry, safer consumer products, and safer children's products laws and regulations. Some of these restrict specific chemicals present in particular categories of products, while others only require reporting if the identified chemicals are present. Several of these state laws are described on the Interstate Chemicals Clearinghouse website.
Volatile Organic Compounds (VOCs)
Volatile organic compounds (VOCs) contribute to air pollution, specifically the formation of ground-level ozone and smog, and are found in many consumer products, including antiperspirants and deodorants, adhesives, adhesive remover, air fresheners, cleaning products (such as automotive wax and polishes, disinfectants, floor polish, and glass cleaner), personal care products (such as hair mousse and spray, nail polish remover, and shaving cream), paint thinner, insect repellent, and lubricants. EPA set standards for VOCs in a number of consumer products under the authority of section 183(e) of the Clean Air Act. See EPA National VOC Emission Standards for Consumer Products.
Many states also have VOC standards, which can be tighter than EPA standards and cover more products. The California Air Resource Board (CARB) currently has the most stringent VOC standards for consumer products. The RCC has a summary of state and federal VOC limitations and a fact sheet highlighting key VOC compliance issues.
EPA has general hazardous air pollutant limitations for commercially available products under 40 CFR Parts 61 and 59. Some of the common federally limited chemicals include benzene, chlorine, formaldehyde, perchloroethylene (perc), and toluene. For example, EPA limits formaldehyde emissions from composite wood products.
Emission Standards (Motors and Vehicles)
Vehicles and other motorized equipment, such as boats, mowers, and garden equipment, create air pollution and contribute to greenhouse gas emissions. EPA can regulate these products under the Clean Air Act to reduce emissions. EPA provides an overview of mobile source regulations and a guide to the federal emission standards for vehicles and engines (both on and off-road) and fuel sulfur standards. California (CARB) emission standards are more strict than federal requirements; additional information is available on California's Mobile Sources Program Portal.
SUSTAINABILITY AND REDUCING COMPLIANCE RISK
One way to reduce environmental impact and regulatory risk is to select products that are less toxic or nontoxic. EPA promotes Green Chemistry to reduce or eliminate the use of hazardous substances in products. Green chemistry is the design of chemical products and processes that reduce or eliminate the generation of hazardous substances. The EPA's Safer Choice program (formerly Design for the Environment) identifies products that may be less hazardous. The Chemical Footprint Project (CFP) provides opportunities to benchmark chemical usage and explore safer alternatives. The Green Chemistry and Commerce Council (GC3) has created Retailer Tools for Safer Chemistry to provide sector-specific guidance on available options.
For general sustainable purchasing, EPA has created the Sustainable Marketplace with information about standards and ecolabels.
Another resource for substitutes for hazardous chemicals in products and supply chains, is the MARKETPLACE by Chemsec, an online platform that provides a marketing opportunity for producers of safer alternatives and where companies can post requests for safer alternatives.
Considerations and resources for retailers regarding chemicals and toxics.
Informational fact sheet on volatile organic compounds and the established regulations at the federal and state level.
A fact sheet detailing regulations on transporting lithium batteries and the safety hazards of transporting lithium batteries.
Detailed fact sheet on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the management, enforcement, and disposal of pesticides.
This matrix covers state EPR or product stewardship legislation that ensures safe disposal of products and have requirements for retailers.
Informational matrix detailing the regulations on Volatile Organic Compounds in different jurisdictions.