A Growing Focus on Indoor Air Quality by Regulators and Policymakers

Congress, the media, and the public have given significant attention to remarks this week by a commissioner of the Consumer Product Safety Commission ("CPSC") indicating that the agency would be considering a federal ban on gas stoves due to their health effects. The suggestion of a ban on gas stoves has drawn comments from bipartisan policymakers in both chambers, and even the White House has weighed in against the prospect of a potential ban.

The CPSC is unlikely to ban gas stoves in the near future, although it has the authority to ban unreasonably dangerous products that cannot be made safe, and has done so with toxic substances in children's products and other product categories in the past. A CPSC rulemaking on mandatory safety standards for gas stoves, however, is a possibility, and that process may drive the establishment of voluntary industry standards by a standards-setting body. Additionally, other federal and state regulators have recently sharpened their focus on indoor air quality and gas-powered appliances, for both health and environmental reasons. The Environmental Protection Agency ("EPA"), for instance, is undertaking several activities related to indoor air quality. And the California Air Resources Board ("CARB") recently adopted a plan that would effectively prohibit the sale of gas-powered space and water heaters in California by 2030.

Particularly with regard to federal regulatory activity on gas stoves and other gas-powered appliances, potentially affected parties will have ample opportunities to help shape the outcome of any mandatory or voluntary product standards put in place or accepted by the CPSC, and to engage with other regulators. This alert provides an overview of recent and emerging legislative and regulatory activity related to indoor air pollution, focusing particularly on activity by the CPSC and EPA. Companies-both those with interests in gas stoves and those concerned with indoor air quality issues more broadly-should carefully follow indoor air quality developments, including in their interactions with regulators, given the increased focus on this area.

Consumer Product Safety Commission

The Consumer Product Safety Act ("CPSA") tasks the CPSC with regulating the safety of consumer products, which the statute broadly defines as products sold or used by consumers. The CPSA exempts from CPSC jurisdiction most items subject to regulation by another federal agency, including food, drugs, tobacco, pesticides, motor vehicles and motor vehicle equipment, and firearms. The CPSC has five commissioners and is bipartisan by statute, although one seat is currently vacant.

The CPSC has the power to promulgate product safety standards that are "reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with such product." The public, including industry, may offer written comments in a CPSC rulemaking on product safety standards, and the CPSC must "give interested persons an opportunity for the oral presentation of data, views, or arguments." Additionally, if the agency receives a submission of a voluntary safety standard and determines that the standard is "likely to result in the elimination or adequate reduction of the risk of injury" and that "it is likely that there will be substantial compliance with such standard," it must terminate the rulemaking and rely on the voluntary standard.

The CPSC faces a relatively high bar to implementing a mandatory safety standard, including the requirement that it make a finding that "the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated." There is an even higher bar for banning a product, which requires a finding that there is "no feasible consumer product safety standard [that] would adequately protect the public from the unreasonable risk of injury associated with such product." Both mandatory standards and a ban could be challenged in federal court, and most courts considering CPSC mandatory standards or bans have subjected the agency's required findings to stringent scrutiny.

Although Commissioner Trumka's recent remarks gained attention due to his reference to a potential ban on gas stoves, the adoption of voluntary or mandatory standards is a more likely outcome. There is a clear CPSC interest in the topic. The agency's fiscal year 2023 operating plan includes as a priority a focus on "chronic hazards, including hazards associated with . . . gas stoves" and sets a target date of March 1, 2023, for agency staff to provide a plan to the commissioners for seeking public input on the topic. In considering the operating plan, the Commission unanimously accepted, as part of a larger manager's amendment, Commissioner Boyle's addition of "chronic hazards" to the agency's priorities. During that meeting, Commissioner Trumka offered an amendment to begin rulemaking on standards for gas stoves, but he withdrew that amendment due to lack of support. The instruction to begin seeking public input on gas stoves was a fallback, which the Commission adopted unanimously.

The agency is also facing congressional pressure to begin promulgating safety standards for gas stoves. In December, on the same day that a study was published indicating that gas stoves may be a major cause of childhood asthma, a group of House and Senate Democrats wrote the CPSC to urge the agency to begin a rulemaking to address health risks from gas stoves. The letter included a focus on the impacts of indoor air quality on vulnerable populations, which is consistent with the priority listed in the CPSC fiscal year 2023 operating plan to "enhance agency data collection and analysis of product safety incidents, injuries, and deaths to identify vulnerable populations" and to "allocate safety work to better address any existing safety disparities among such identified vulnerable populations."

Environmental Protection Agency

The EPA has also shown a growing interest in indoor air quality, including related to emissions from gas-powered appliances. The EPA has expansive statutory authority to research, but not regulate, indoor air quality issues under the Radon Gas and Indoor Air Quality Research Act of 1986. Despite lacking authority to regulate in this area, the EPA's research can be authoritative and lead to regulatory and legislative activity and industry scrutiny. For example, the EPA's 1993 report on the risks of secondhand smoke exposure influenced public understanding of the dangers of secondhand smoke and the subsequent proliferation of smoke-free laws. A recently published report by the National Academies of Sciences, sponsored in part by the EPA, stressed the importance of issues relating to indoor chemicals, and the effect of these chemicals on air quality and human health.

As part of its efforts on indoor air quality, EPA has also become involved with indoor air quality sensor technology. Most notably, the EPA recently published guidance on the benefits and limitations of low-cost air quality monitors. While noting that air quality monitors may be helpful in measuring indoor pollution, the EPA also cautioned consumers that there is limited information as to the accuracy of these monitors and noted that there is "currently no widely accepted air concentration limits for most pollutants indoor." The guidance also reflects increased concerns about indoor air pollution, including from stoves, stating that "[i]n some instances, you may wish to use one or more monitors to compare pollutant levels or environmental factors before, during, and after an activity like cooking." The development of indoor air quality monitors may be significant to providing alternatives to simply banning products, by providing consumers with information they can use to respond to indoor air quality issues. Similarly, enhanced research regarding indoor air pollution may provide greater clarity about pollutant levels of concern indoors.

The EPA also has jurisdiction under the Federal Insecticide, Fungicide, and Rodenticide Act over air-cleaning devices if device claims include pest or other micro-organism mitigation (e.g., air filters, air purifiers). The agency has significantly increased its focus on these devices due to the COVID-19 pandemic, and we can expect a continued concern with indoor air quality issues to result in continued EPA engagement regarding this category of products.

As additional evidence of the agency's interest in these issues, the EPA published a request for information in October 2022, seeking input on "actions, strategies, tools and approaches that support ventilation, filtration and air cleaning improvements, and other actions" to promote indoor air quality, with a focus on reducing disease transmission indoors. The request for information was prompted, in part, by the Biden Administration's Clean Air in Buildings Challenge, which calls on building owners and operators to improve indoor air quality and reduce the spread of COVID-19.

Finally, in exercising its authority to address outdoor air pollution, the EPA may affect indoor appliances and indoor air quality. For example, in August 2022 environmental groups, including the Sierra Club, petitioned the EPA to list heating appliances (including indoor appliances such as space heaters, gas stoves, and dryers) as a source category under the Clean Air Act and to issue performance standards.

State and Local Legislation

State and local regulators and legislative bodies have also engaged in activity related to gas-powered appliances. In addition to the California Air Resources Board plan that would effectively prohibit the sale of gas-powered space and water heaters in California by 2030, amendments to the state's building code that strengthened ventilation standards and established requirements for single-family homes to be ready for electric appliances went into effect on January 1. The Los Angeles prohibition on gas appliances in new buildings will be effective this month, and in November 2022, the largest county in Maryland passed a law requiring all new construction to be fully electric by the end of 2026. Numerous other local governments have enacted their own gas bans, although there is currently ongoing litigation regarding whether these gas bans may be preempted under the Energy Policy and Conservation Act. Additionally, these gas bans have prompted backlash from some state governments. As of June 2022, 20 states have passed legislation prohibiting local communities from enacting gas bans, and legislators in states where such "preemption legislation" failed may try again in the coming year.

Product manufacturers, retailers, and consumers can expect continued state and local legislative activity on gas appliances in 2023. For example, New York's Climate Action Council plan, passed in December, contains recommendations for implementing New York's 2019 Climate Leadership and Community Protection Act. The plan calls for making buildings more energy efficient through a mix of adopting zero-emission building codes and standards and providing incentives to transition to energy efficient appliances. Cities such as Denver and Eugene, Oregon, are also considering bans on natural gas in new residential buildings.

Non-Governmental Organizations

Non-governmental organizations are likely to continue advocating for regulation of gas-fueled appliances and indoor air quality. For example, a 2022 study conducted by the U.S. Public Interest Research Group ("PIRG") Education Fund and the Sierra Club found that consumers shopping at various retailers may not be informed of the health risks associated with gas stoves and the need for ventilation. Additionally, in June 2022, the American Medical Association passed a resolution "recogniz[ing] the association between the use of gas stoves . . . and asthma," and resolving to advocate for programs to encourage the transition from gas stoves to electric stoves.

Opportunities for Companies

Clearly, indoor air quality concerns are not going away, and we expect continued regulatory and policymaking focus on these issues. Companies selling products that may contribute to indoor air quality issues should consider monitoring these developments, participating in rulemaking and legislative processes, and proactively taking steps to evaluate and mitigate any indoor air quality risks (e.g., enhanced ventilation, monitoring), and develop a legal and regulatory strategy. Others may want to consider both the benefits and the risks associated with providing air-cleaning and air-monitoring technologies to consumers, which will continue to be an area of significant regulatory and legislative focus.

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