Oregon, USA, Proposes to Amend the Toxic Free Kids Act

The US state of Oregon has published a Notice of Proposed Rulemaking (NPR) to revise the reporting requirements for children's products. Comments are accepted until November 22, 2021

SAFEGUARDS | Consumer Products NO. 151/21

In 2015, the US state of Oregon signed the 'Toxic-Free Kids Act' (the Act) into law. The Act authorizes the Oregon Health Authority (OHA) to establish and maintain a list of High Priority Chemicals of Concern for Children's Health (HPCCCH) that are used in the manufacture of products for children under the age of 12, and to establish rules governing what manufacturers must do to comply with the Act. These rules and implementation processes were established over Phases 1 to 3.

According to the Act, reporting is required if an HPCCCH is:

• Intentionally added and equal to or greater than the practical quantification limit (PQL), or
• A contaminant that is equal to or greater than 100 ppm

An HPCCCH, however, will be required to be removed, substituted with a less hazardous alternative or have a waiver approved by the OHA by January 1, 2022 (or when a manufacturer has made three biennial notifications to the OHA of children's products containing HPCCCH at or above the de minimis level) if the children's product fall within any of the following three categories:

• Cosmetics
• Intended for children under the age of three, or
• 'Mouthable' as defined under ORS 431A.253(8)

In August 2021, the OHA issued Temporary Administrative Order (TAO) PH 40-2021 to clarify reporting requirements under the Act. This TAO clarifies that reporting of an HPCCCH is for each component part/unit of a children's product and not the whole/entire product, and that the highest concentration is to be reported if there are multiple concentrations for a given unit in a particular product category (SafeGuardS 134/21).

The OHA website has made available a Notice of Proposed Permanent Rulemaking (NPPR) - 'Toxic Free Kids Rule Revision to clarify Reporting and Revise Reportable Chemical List'. This NPPR contains several important changes to the Act. It:

• Makes the aforementioned TAO PH 40-2021 permanent. This will apply to biennial notifications due on January 1, 2022 for products sold or offered for sale in the state in 2020 and 2021
• Adds five chemicals from the Washington State Department of Ecology's Reporting List of Chemicals of High Concern to Children (CHCC) to the state's HPCCCH list. This will apply to biennial notifications due on January 1, 2024 for products that are sold or offered for sale in 2022 and 2023. These five HPCCCH are:
  • Bisphenol F (BPF, CAS 620-92-8)
  • Chlorinated paraffins (CAS 108171-26-2)
  • Dicyclohexyl phthalate (DCHP, CAS 84-61-7)
  • Diisobutyl phthalate (DIBP, CAS 84-69-5)
  • Ethylhexyl diphenyl phosphate (EHDPP, CAS 1241-94-7)
• Amends the entry for 4-nonylphenol to become 4-NP and its isomeric mixtures including CAS 84852-15-3 and CAS 25154-52-3
• Simplifies the entry for 'Mercury (7439-97-6) & mercury compounds including methylmercury' to become 'Mercury & mercury compounds'
• Provides the Practical Quantification Limits (PQLs) and methods for the proposed five HPCCCH and amends the PQLs for 27 HPCCCH that were already on the list

According to the NPPR, comments will be accepted until November 22, 2021.

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