February 2013

GHS, VOC limits, Green Chemistry, TSCA & More…

Expect 2013 to be a busy year for regulatory compliance, as the Globally Harmonized System of Classification and Labeling of Chemicals (GHS)-based regulations are enacted in more countries and on a wider variety of products. If that were not enough, Environment Canada has already surprised us this year with the resurrection of a dormant volatile organic compound (VOC) proposal.

GHS: Waiting for guidance
In both the U.S. and Canada, industry is waiting for guidance on GHS-based regulations. In the U.S., we are awaiting instructions from the Occupational Safety & Health Administration (OSHA) on a number of issues, including additional guidance on Hazards not Otherwise Classified (HNOCs) and how to appropriately label “dual use” products used both by consumers and in the workplace. Our clients are particularly concerned about dual use labeling, but in our view, HNOCs are a far larger issue, as they open companies up to potentially large civil liability that they may not be aware of.
In Canada, we are awaiting a draft regulation on GHS. Our understanding was that Health Canada’s goal is to have a final regulation in place by in mid-2013 with a two year phase-in period ending in mid-2015, to match with both the U.S. and EU mixture phase-in dates. Since we have reached 2013 without the release of even a draft document, we expect that Health Canada will push back these dates.

GHS and Consumer Products
Once GHS is fully implemented into the industrial/institutional market, expect consumer product regulations to be revised to adopt elements of GHS. This will bring a whole new set of challenges, as many consumer products which were previously considered non-hazardous will now be classified as flammable or toxic due to the more stringent criteria. Our best estimates are that the U.S. and Canada will not alter their consumer regulations until the latter part of the decade, though some countries will do so much sooner. For instance, the Philippines Food & Drug Administration has released its first draft of its GHS based rule for the “Labeling of Household Hazardous Chemicals & Consumer Products”.

Canada re-introduces VOC regulations
On Jan. 16, 2013, Environment Canada announced that they would be revising their proposed VOC Concentration Limits for Certain Products Regulations. The original proposed regulation was published in the Canada Gazette way back in 2008 and has sat idle since then. Environment Canada states that their goal is to “align product categories and limits with those in California’s current Consumer Products Regulations and include an averaging and trading regime similar to California’s Alternative Control Plan.”
More information was given in a public meeting on Feb. 7. To see Doug Raymond’s take on the new proposal, see page 8 of this issue.

DOT Small Quantity change reminder
A reminder: As of Jan. 1, 2013 shippers are no longer authorized to display the ORM-D-AIR mark on their packages. Instead the Y limited quantity mark must be displayed.

What’s on our radar for 2013
It seems every year we hear that this is the year The Toxic Substances Control Act (TSCA) will be significantly reformed, but it may actually happen in 2013. Changes to TSCA would be particularly costly to industry, with the Congressional Budget Office pricing Senator Lautenberg’s The Safe Chemicals Act of 2011 reform at $128 million over the next five years. This is one worth watching closely.
The final regulation for California’s “Green Chemistry” law may be released early in 2013. Given how broad this regulation is likely to be and how many of these rules will be migrating to other jurisdictions, we will also be watching this one closely.
Both the U.S. and Canada are in separate negotiations with the EU with the goal of signing free trade agreements. Canada is reportedly quite close to completing a deal, which is expected in the first quarter of 2013. Any deal will involve a fair bit of regulatory harmonization, so do not be surprised to see some more stringent EU- based regulations make their way over to North America if a trade deal is signed.
As usual, there are more questions than answers in the regulatory world. We are hoping to have some of these issues resolved by next quarter. SPRAY