As manufacturers and marketers of aerosol products know, there are many laws, regulations, standards and codes to comply with, such as ingredient disclosure, transportation regulations, and volatile organic compound (VOC) standards. Fire and building codes don’t immediately come to mind when discussing the most influential requirements, but these model codes, which are developed by the National Fire Protection Association (NFPA) and International Code Council (ICC), are adopted into law and enforced by Federal, State and local governments to regulate the construction and maintenance of buildings and control storage, use and handling of hazardous materials. In fact, they define all aspects of a building where aerosol products are manufactured, stored, sold or used, including building size, construction materials, exiting, sprinkler protection and ventilation. Aerosol product quantities, flammability classification, location in buildings, storage height, sprinkler protection and display layout are also detailed in building and fire codes.

Building and fire codes will be discussed at the upcoming ICC Committee Action Hearings for the next edition of the International Fire Code (IFC). Currently, there are three proposals to amend the fire codes for aerosol products in the IFC during this code cycle, two of which are from the Household & Commercial Products Association (HCPA) to align the IFC with recent amendments to the NFPA 30B, Code for the Manufacture & Storage of Aerosol Products. However, the third proposal, which was not introduced by Industry, is quite concerning.

Fire officials are proposing to amend a number of codes for a variety of products and materials within the IFC, including for aerosol products, to align with the Globally Harmonized System of Classification & Labeling of Chemicals (GHS) for flammability. Their rationale is that the Safety Data Sheet (SDS) is typically the only available information they have about flammability to verify the proper design of buildings and warehouses. While several industries have concerns about this kind of change, the aerosol products industry is uniquely positioned to argue against it.

The HCPA has been an active participant in the development of building and fire codes since the early 1980s. This involvement came about when the regulatory community attempted to severely restrict the storage and sales of aerosol products through draconian construction requirements and rigorous limits on the quantity of product in storage and sales after major fires caused by aerosols. To combat these requirements, the aerosol industry conducted numerous fire tests to develop a set of controls for the safe storage and sale of aerosol products. The HCPA has recommended many amendments to the U.S.’s complex system of fire and building codes, which are based on data developed from fire tests to ensure that HCPA’s positions are credible and compelling to fire officials, fire insurers and fire engineering professionals.

From this data, we know that alignment with GHS is not appropriate for aerosol products and, if adopted, would lead to inadequate fire protection systems. The amendments could also lead to confusion and would require significant retraining; it would also be costly to review and recategorize each aerosol product.

The aerosol industry would support amendments that are supported by data and show improved fire protection. How could Industry say no to these improvements? However, administrative changes that are not based on testing and that fundamentally change how fire protection is determined cannot—and should not—be accepted.

The HCPA is working on potential modifications to the proposed amendments that represent the aerosol industry’s best interests and we are hopeful to arrive at a common sense solution. However, if Industry’s interests are not considered, HCPA will object. Fire protection is important to everyone—we cannot go backward and Industry has data to demonstrate the most effective codes to be implemented.

For more information about fire and building codes for aerosol products, please contact me at SPRAY

Having worked in the industry for more than 15 years, I can’t help but notice the marketing claims on products as I walk the aisles of my local grocery store. Recently, I’ve seen more frequent claims about what ingredients a product doesn’t use, such as “BPA free,” “No GMOs” and “Phthalate free.”

For most products, these claims fall under the jurisdiction of the Federal Trade Commission (FTC) and the Guides for the Use of Environmental Marketing Claims,i better known as the Green Guides. The 2012 version added a section for “free-of” claims,ii which advise that, even if true, claims that a product is “free-of” a substance may be deceptive if:

1. The item contains substances that pose the same or similar environmental risk as the substance not present, or
2. The substance has not been associated with the product category.

The Green Guides also clarify that a “free-of” claim may, in some circumstances, be non-deceptive even though the product contains a “trace amount” of the substance. Since these statements can be confusing, HCPA submitted comments to the FTC last year requesting updated examples of “free-of” claims for inclusion in the next update of the Green Guides.

While the FTC manages “free-of” marketing claims for most products, the U.S. Environmental Protection Agency (EPA) evaluates “absence of an ingredient” claims for products registered under the Federal Insecticide, Fungicide & Rodenticide Act
(FIFRA). Similar to the FTC, the EPA will not allow false or misleading statements;iii however, in certain instances, where information indicates that these types of claims are not misleading, the EPA will allow these types of claims.

Under FIFRA, the EPA reviews a product’s master label as part of the registration process. As part of the EPA’s Label Review Manual,iv the EPA has provided limited guidance since the early 2000s on claims about the absence of an ingredient. However, this guidance, and subsequent updates, have focused on misbranding and did not provide a good pathway for registrants to utilize such claims.

The EPA has approved plenty of pesticide registrations containing a variety of “absence of ingredient” claims on a case-by-case basis; however, the regulated community has long sought clarity on whether and how “free-of” claims can be made and approved by the EPA.

To assist companies, the EPA recently publishedv new guidance for commonly proposed claims, including “bleach free,” “phosphate free” and “DEET free.”

Regarding “bleach-free” claims, the EPA understands that companies typically do not say “bleach-free” for safety reasons, but to inform consumers in situations where bleach may cause damage (e.g., clothing). However, to accurately make this claim, companies should avoid chlorinated chemistries that, when added to a solution, can break down into free available chlorine.

Phosphates are not typically listed as active ingredients, so “phosphate-free” claims are meant to inform consumers that this substance is not an inert ingredient in a product’s formulation since inert ingredients aren’t listed on the product label. Further, some States have restricted the use of phosphates and, in the case of New Yorkvi, there are labeling provisions, so the EPA would not consider such a claim to be misleading (provided that the product does not contain any phosphate[s]).

For companies that manufacture bug sprays, the EPA will also allow an “absence of DEET” claim as long as it’s accompanied by a qualifying statement such as, “Not a safety claim.” The EPA recognizes that consumers have concerns with DEET (N,N-Diethyl-meta-toluamide), despite it being used for many decades and its proven safety when used according to directions on the label.

Within this guidance, the EPA also discusses its applicability to minimum risk pesticides, or 25(b) products. While it has exempted minimum risk pesticides that meet all requirements from FIFRA registration, many States still have some type of registration.vii However, this exemption provides a provisionviii that requires the product to “not include any false or misleading labeling statements…” Accordingly, to the extent that an “absence of an ingredient” claim is not false or misleading, a “free-of” claim would not disqualify an otherwise qualified minimum risk pesticide from exemption.

HCPA has been working with the EPA on this guidance for several years and we are pleased to see its publication to include certain clarities. For more information on either the EPA’s guidance or the next update to the FTC’s Green Guides, please contact me at SPRAY

i 16 CFR Part 260
ii 16 CFR 260.9
iii 40 CFR 156.10(a)(5)
iv link
v link
vi NY Environmental Conservation Law §35-0105
vii 40 CFR 152.25(f)
viii 40 CFR 152.25(f)(3)(iv)

Do you remember what you made for dinner last night? What about a week ago? It might be even more difficult to remember each ingredient that went into making the meal and when/where you got it. What if you had to remember these details for every dinner going back almost 14 years?

This is exactly the situation that manufacturers and processors are currently experiencing under the Toxic Substances Control Act (TSCA) Section 8(a)(7) rulei for retrospective reporting for per- and polyfluoroalkyl substances (PFAS) that is required by the 2020 National Defense Authorization Act (NDAA).ii This rulemaking has undergone significant stakeholder feedback over the past several years, through both the extensive rulemaking process and a small business panel review created to assist the U.S. Environmental Protection Agency (EPA) and the regulated community in understanding the significance of this undertaking.

In summary, the rule requires manufacturers, including importers, to retrospectively report any PFAS chemicals identified by the rule with numerous data elements from Jan. 1, 2011. (Note: Section III.B.2 of the rule defines “Manufacture for commercial purposes” to include the import, production or manufacturing of a chemical substance or mixture containing a chemical substance to obtain an immediate or eventual commercial advantage for the manufacturer. This includes, but is not limited to, the manufacture of chemical substances or mixtures for commercial distribution, including test marketing, or for use by the manufacturer itself as an intermediate or for product research and development. “Manufacture for commercial purposes” also includes the coincidental manufacture of byproducts and impurities that are produced during the manufacture, processing, use or disposal of another chemical substance or mixture. As described in Unit III.B.1, simply receiving PFAS from domestic suppliers or other domestic sources is not considered manufacturing PFAS for commercial purposes. Entities that process and use PFAS only need to report on the PFAS they have manufactured [including imported], if any.)

Manufacturers or importers of chemical substances that meet the definition of PFAS under TSCA must report on PFAS information by site, in any quantity (no threshold applies), for each calendar year from 2011 through 2022. The reporting also includes PFAS imported as part of articles, although streamlined reporting is available; PFAS imported or manufactured solely for research and development (R&D), but streamlined reporting is available only for PFAS imported or manufactured for R&D in a quantity below 10 kilograms per year (< 10 kg/year); PFAS imported or manufactured as byproducts, impurities or polymers; and PFAS manufactured as non-isolated intermediates. Each entity subject to reporting must retain records that document any information reported to the EPA for five years beginning on the last day of the submission period. The reporting opens on Nov. 12, 2024, and closes six months later on May 8, 2025. However, “small manufacturers” who have to report solely due to having imported PFAS as part of articles have an extra six months to report (until Nov. 10, 2025).

While this rule is based on the Chemical Data Reporting Rule, it includes additional data elements for each reportable substance. The rule defines PFAS as any chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three sub-structures:

1. R-(CF2)-CF(R’)R”—where both the CF2 and CF moieties are saturated carbons.
2. R-CF2OCF2-R’—where R and R’ can either be F, O or saturated carbons.
3. CF3C(CF3R’R”—where R’ and R” can either be F or saturated carbons.

As of February 2023, the EPA has identified at least 1,462 substances that can be defined as PFAS under TSCA that could be covered by the final rule,iii 770 of which are listed on the TSCA Inventory with active commercial status designations. As of December 2023, the EPA’s Office of R&D has identified a much broader list of 11,409 specific PFAS that could be covered by the final rule.iv Given that these lists are non-exhaustive, companies are encouraged to compare against these lists but also perform their own due diligence to ensure no other substances meet the definition of PFAS. It’s important to note that HFC-152a is not within the rule’s scope for the aerosol industry, but other Hydrofluorocarbons (HFCs) and Hydrofluoroolefins (HFOs) meet this definition, so it’s essential to verify.

You may be thinking, “We don’t manufacture PFAS, so would we still need to report?” Therein lies the challenge. While many companies do not need to report, it’s still critical to have documentation of this fact.

To provide a better appreciation for the impact of the rule, when it was originally proposed by the EPA, the economic impact was estimated at a little over $10 million.v However, after stakeholders, especially small business entities, provided feedback, the EPA increased the economic impact to more than $800 This change was primarily driven by the due diligence that would be required by companies to determine if they have reporting obligations. This is particularly complicated for companies with product formulations or product functionality that may have or likely required PFAS technology or companies that imported ingredients for formulations over the past 14 years.

What should be done to establish due diligence? What records should you have or maintain? How should you document the steps taken to determine whether or not you have ingredients within the scope of the rule? What happens if you don’t have these records? Each of these questions needs to be carefully considered when determining reporting requirements—whether or not you have them.

Important things to consider as you perform due diligence include:

1. Do you meet the definition of manufacturer, including imports? If so, do you have a process, standard operating procedure (SOP) or checklist that documents the steps to determine compliance?
2. Have you utilized raw materials that are/were likely PFAS? If so, were these raw materials from domestic sources or imported?
3. Do you have products within the scope of other regulations, such as personal care products, cosmetics or pesticides? If so, do they contain any PFAS ingredients that might be considered within the scope of TSCA?
4. Do you have the records documenting these raw materials?
5. Do you have a record retention policy?
6. What reasonable efforts can be taken to obtain this information from suppliers?

This one-time reporting rule will clearly impact a majority of companies in the household and commercial products space, including aerosol products. There may also be situations where suppliers or customers will pose questions about your reporting or recordkeeping in response to their own compliance obligations. This is a very significant rule—and one that requires a high level of due diligence to comply. While many companies will have reporting obligations, this will require a similar level of effort from companies to demonstrate that they do not have any reportable PFAS substances.

If you have any questions concerning this information to help determine PFAS reporting requirements, please contact me at SPRAY

i In the Oct. 11, 2023, Federal Register, EPA finalized a reporting and recordkeeping rule for PFAS to implement TSCA § 8(a)(7). The final rule took effect on Nov. 13, 2023 and is codified as the new 40 C.F.R. pt. 705. link
ii Section 7531 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116–92, added new paragraph 8(a)(7) to TSCA.
iii Public List of TSCA PFAS for 8(a)(7) Rule, link
iv link
v Draft Economic Analysis for the Proposed TSCA Section 8(a) Reporting & Recordkeeping Requirements for Perfluoroalkyl & Polyfluoroalkyl Substances, link
vi Economic Analysis for the Final Rule entitled: “TSCA Section 8(a)(7) Reporting & Recordkeeping Requirements for Perfluoroalkyl & Polyfluoroalkyl Substances” link

The California Office of Environmental Health Hazard Assessment (OEHHA) remains active on Proposition 65 (Prop 65) by adding new chemicals to the list, modifying existing safe harbor levels and, again, proposing to amend the safe harbor content for the short-form warning.i It is critical for companies to stay on top of changes to warning content to avoid litigation, especially since compliance is primarily the responsibility of the manufacturer. Remember, anyone, including private citizens, can provide notice of an alleged violationii, and private enforcers have taken advantage of the ability to do so.
Prop 65 requires companies to provide a warning about exposure to chemicals in products sold in California that are known to cause cancer, birth defects or other reproductive harm. The critical word in that last statement is exposure—the mere presence of a compound doesn’t necessarily require a warning.
OEHHA is required to publish and maintain a listiii of chemicals that is updated at least yearly. The original list was published in 1987 and had only 30 chemicals; however, the current list is quickly approaching close to 1,000 chemicals.
OEHHA also maintains a listiv of safe harbor levels, which include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity.
The NSRL is the exposure level resulting in no more than one case of cancer out of every 100,000 individuals over a 70-year time period. The MADL is the level at which the chemical would have no observable adverse reproductive effect, assuming exposure at 1,000 times that level. The NSRL or MADL may also be pathway-dependent (e.g., inhalation), which, depending on a product’s usage, may be an important consideration.
Only one-third of the chemicals on the Prop 65 list have an NSRL or MADL value that has been determined (safe harbor levels). Alternatively, the carcinogenicity or developmental toxicity values driving the Prop 65 listing can be utilized to determine the NSRL or MADL for a listed chemical.
Exposures below safe harbor levels are exempt from the requirements of Prop 65. While a significant number of substances do not currently have safe harbor levels, companies can develop—individually or through industry groups—new and/or alternative levels. There is no exemption for substances that do not have a safe harbor level.
To utilize an NSRL or MADL, companies must demonstrate that levels of exposure are not exceeded. Exposure assessments are conducted to determine how much exposure to a chemical occurs through the typical use of a product, including the formulation and packaging. Since anyone can initiate a Prop 65 claim once a listed chemical has been detected, companies must prove that the level of exposure does not warrant a warning. For this reason, companies should always be prepared with sufficient documentation in case a challenge comes up.
Beyond an NSRL or MADL for an individual substance, companies can also be exempt from warning based on:
1. The size of the company;
2. Exposure from a naturally occurring chemical in food, which can be appliedv to consumer products, but requires significant due diligence; and
3. Discharge into any source of drinking water does not result in a “significant amount” of exposure
Another option that can be utilized is a Safe Use Determination (SUD). Under this consideration, a business or trade group can request that OEHHA determine whether the exposure of a listed chemical for a specific use would be subject to warning This provides an option for additional assurance if performed preemptively, as this option is not available once a company has been alerted to a notice of violation.
When a warning is needed, it is recommended that companies use the language created by OEHHA to guarantee their compliance with Prop 65 regulations. If you have any questions about Prop 65 in general, the newly proposed amendments to the short-form warning, or the listed chemicals and safe harbor limits, please contact me at SPRAY

ii  Private parties must provide at least 60 days’ notice of the alleged violation to the business, as well as to the Attorney General and the appropriate District Attorney and City Attorney.
iii link
iv  link
v   Cal. Code Regs. Tit. 27, § 25501
vi  link

2024 Forecast

The Household & Commercial Products Association (HCPA) recently publishedi its 2023 Government Relations & Public Policy Report, which highlights a range of legislative and regulatory issues that it engaged this year, including reauthorization and implementation of the Pesticide Registration Improvement Act (PRIA), funding for the U.S. Environmental Protection Agency (EPA), the Toxic Substances Control Act (TSCA), pesticide registration, per- and polyfluoroalkyl substances (PFAS) and more.

Packaging was one area that the HCPA engaged in heavily in 2023, specifically related to post-consumer recycled (PCR) content, household hazardous waste (HHW) and extended producer responsibility (EPR). EPR requires the producer of a product—such as the manufacturer, marketer and/or importer—to take responsibility for its end-of-life. This “producer pays” policy aims to shift end-of-life costs from the public sector to Industry.

Requirements of existing EPR programs vary from State to State. In 2023, 12 states introduced EPR proposals that did not pass, but would have directly impacted aerosol products. California, Colorado, Maine and Oregon remain the only four States with EPR laws for product packaging. However, in 2023, Marylandii and Illinoisiii approved State government-initiated studies intended to inform future EPR legislation, and Vermont enactediv an EPR law for HHW, making it the first U.S. State to introduce such a program.

While we expect to see even more EPR proposals in 2024, they will most likely be different than existing laws in the U.S. and other established EPR frameworks in Canada or Europe. This is because the EPR laws in California, Colorado, Maine and Oregon each have their own unique requirements. It is always our goal to avoid a patchwork of requirements among States to make compliance more manageable for manufacturers and marketers.

The work doesn’t stop once bills are signed into law. There is a role to play when it comes to implementation—and the aerosol industry needs to be involved. In terms of implementation, Oregon’s Dept. of Environmental Quality (DEQ) appears to be the furthest along, and HCPA anticipates aerosol containers to be included on the list of recycling materials that will be accepted through drop-off programs in 2024. Industry engagement in the implementation process will help ensure that drop-off programs for aerosol containers are managed properly and effectively.

California is implementing SB 54v and HCPA anticipates that it will be more difficult to keep aerosol containers recyclable in that State. Although California’s statute contains a provision exempting hazardous or flammable products as classified by the U.S. Occupational Safety & Health Administration’s (OSHA) Hazard Communication Standard,vi regulators and Industry do not always interpret these exemptions the same way.

If Industry chooses to utilize this exemption, it will be important to have a well-developed strategy to address the disposal of aerosol products that are viewed by key stakeholders as “hard to dispose of” because of perceived risks associated with managing waste from aerosol containers. If aerosols are excluded from California’s final EPR rules, environmental advocates may then propose legislation specific to aerosol products that would make recycling these products virtually impossible.

We will be keeping an especially close eye on Vermont during implementation of its HHW EPR law because this will most likely serve as the model for how other States address HHW programs. While HCPA was successful in eliminating numerous legislative mandates, the law is still quite onerous. Compliance with this law, as currently written, will be extremely challenging for Industry.

EPR is just one of the many topics that will be important to the household and commercial products industry in 2024. HCPA’s Government Relations & Public Policy Report discusses this (and other issues) in more detail, especially specifics in each State.

It was a busy year of legislative and regulatory challenges in 2023, with even more to come in 2024, but amidst all the business and chaos, all of us at HCPA wish you a happy and healthy New Year.

For more information about EPR or any issues impacting the household and commercial products industry, please contact me at SPRAY

i   link
ii  link
iii link
iv  link
v   link
vi 29 CFR 1910.1200

By Nicholas Georges, HCPA Senior VP, Scientific & International Affairs with the HCPA Aerosol Products Division Plastic Aerosol PCR Task Force i

Sustainability has become an integral part of every business and companies have been exploring opportunities to improve their environmental footprint. This includes reducing energy use, decreasing emissions from transportation and redesigning primary, secondary and tertiary packaging.

Increasing the use of post-consumer recycled (PCR) content—through both voluntary initiatives and compliance with State mandates—is one way that companies are reducing the environmental impact of a product’s packaging.

Companies in the household and commercial products industry should be aware of current rules in New Jerseyii and Washington Stateiii that set minimum PCR content requirements for rigid plastic packaging and household cleaning and personal care products in plastic packaging, respectively. However, some Federal requirements prevent packaging from containing PCR. Then what?

That’s the exact issue for aerosol manufacturers and marketers that want to use plastic aerosol containers in the U.S. The Pipeline & Hazardous Materials Safety Administration’s (PHMSA) requirements for plastic aerosol containers do not allow for the use of PCR, per 49 CFR 178.33b-6 (bolding added for emphasis):

Each container must be manufactured by thermoplastic processes that will assure uniformity of the completed container. No used material other than production residues or regrind from the manufacturing process may be used. The packaging must be adequately resistant to aging and to degradation caused either by the substance contained or by ultraviolet radiation.

A Federal regulation should pre-empt State requirements; however, it’s always possible for a State to decide differently, which requires litigation to make the ultimate decision. Rather than spending significant time and resources going through the court system, members of the Plastic Aerosol Research Group, LLC (PARG)iv used both analytical and physical property test measurements to analyze the impact of container integrity with various levels of PCR, specifically Solid-Stated Polymerization (SSP) Polyethylene Terephthalate (PET), compared to plastic aerosol containers that used only virgin PET.

The analytical tests consisted of Intrinsic Viscosity (IV) and Differential Scanning Calorimetry (DSC), which indicate the strength, thermal stability and integrity of the material and can predict anomalies and degradation in the polymer.

Through these studies, PARG looked at the base resins, as well as the pre-forms made with resin variables of 100% virgin (no PCR), 25% PCR, 50% PCR, 75% PCR and 100% PCR (no virgin material). The results showed no significant differences between the virgin and PCR resin blends.

The physical property tests included the burst strength, drop impact and resistance to temperature conditions. The data demonstrated that adding solid-stated polymerization PCR to virgin PET can produce a container that is of equal quality to a virgin PET container. That being said, manufacturers and marketers must still perform testing to assure stability and performance of the container once a formulation has been added.

Based on the results of these tests, combined with previous researchv that showed UV exposure is not expected to cause any significant difference in the performance properties of virgin and recycled PET with similar intrinsic viscosities, PARG members were able to conclude that there is no significant difference in the physical integrity of plastic aerosol containers containing only virgin PET or various levels of SSP PCR.

While PARG completed its overall mission and has since dissolved, the Household & Commercial Products Association’s (HCPA) Aerosol Products Division has published this work in a white paper, available here. HCPA and members of the aerosol industry will use this work to educate PHMSA in the hope that it will modify its regulation and allow the use of SSP PCR.

For more information on this work or to get involved with this advocacy, please contact Nicholas Georges at SPRAY

i Andy Franckhauser, P&G; Priyan Manjeshwar, Plastipak; Rodney Prater, SC Johnson; Scott Smith, Plastipak
ii S 2515
iii SB 5022
iv The Plastic Aerosol Research Group, LLC (PARG) was an internationally recognized consortium involved in the global advancement of the aerosol industry. The PARG charter was to grow the industry through good science and innovative processes. PARG was an advocate of the expansion of the aerosol container platform in an effort to grow the aerosol industry as a whole.
v Study of UV Degradation on Plastic (PET) Aerosols, Rochester Institute of Technology (RIT), Journal of Applied Packaging Research (full study available here)

When I worked in R&D, I was often asked how well I knew the products I was creating. I, of course, thought that I knew these products better than anyone else—I was the one making them, after all. I knew why I had chosen one ingredient over another, why I decided to use a particular concentration or how I determined that a specific order of addition was required to achieve the desired formulation.
However, the level of scrutiny surrounding the ingredients in a product (intentionally added or not) has significantly increased since I was in the lab almost a decade ago. Demand for more transparency from consumers, non-governmental organizations (NGOs), legislators and regulators has resulted in longer lists of chemicals of concern, which include more impurities and contaminants than intentionally-added compounds. In addition to longer lists, there have also been improvements to analytical instrumentation that allow for detection of parts-per-billion and even parts-per-trillion in some cases.
Even with this level of detection, it is nearly impossible for one company to know every detail about a product on its own. However, it is still the responsibility of each company to know what is in their product, and it is critical to work with the entire supply chain to discover this information. A thorough evaluation will help companies understand, not only what is being tested, but also what theoretical substances could be within various materials throughout the product’s life cycle, such as unintended reactions during manufacturing, interactions in the final package, potential sources of contamination or instability in the final product. Additionally, consideration of what substances could theoretically be in a product is more important now than ever because current analytical techniques will eventually advance to provide new intelligence.
Ultimately, this information will guide a company’s supplier choice(s), specifications or analytical capabilities beyond the traditional pricing and capacity considerations. Today, these are important factors to consider because a company’s reputation or brand could be damaged by the presence of a chemical of concern.
Communication throughout the supply chain is even more critical for aerosols because of the potential difficulties in testing the finished product. Understanding the analytical instrumentation and its ability to detect a particular substance at low levels requires the expertise of analytical chemists who are trained on each specific instrument and type of chemistry. While spraying an aerosol product is easy and convenient for consumers and workers, it is not that simple for analytical testing purposes, which is why such a high-level of expertise is required. The tester needs to understand the chemistry within the product, whether the analyte is in the concentrate or the propellant, and the packaging. Depending on the situation, different methodologies must be employed for the sample preparation and be compatible with the analytical instrument. I don’t want to oversimplify the testing of raw materials; however, most ingredients and components are easier to analyze that a finished aerosol product.
We’ve all heard about a time (or been in the situation ourselves) when a chemical of concern has been found in a product. Asking the right questions is key:
• Was the chemical present in the formulation or the packaging?
• Is the chemical in all lots of the product?
• Is the chemical present, but at differing levels than reported?
• Were the samples prepared and properly analyzed using a validated method?
The answers to these questions will be ready and available if there is communication and collaboration across the supply chain. Product manufacturers must be informed at every step of the way, understanding everything from analytical capabilities to their vendor’s compliance to what could theoretically be within a material.
At the end of the day, the finished aerosol product manufacturer is responsible for what is in the container, so it’s important to do your due diligence! Understanding the latest information on chemicals of concern, including how they are being tested, is at the top of the list. Otherwise, how will you respond if a third party tests your product and claims the presence of a chemical of concern?
How well do you know your product? Would you be comfortable answering challenging questions from regulators or if subpoenaed?  If you don’t already know, this is your sign to contact your supply chains to ask how they test for chemcials of concern.
For more information, please contact me at SPRAY

I try my best to avoid repeating topics within a year, but the constant changes in this industry sometimes require me to address an issue more frequently. I wrotei a column in April about the intentional misuse of aerosol products. It shared data on inhalant abuse, explained efforts the aerosol industry has taken to educate consumers about the dangers of intentionally misusing products and discussed a petitionii by the Families United Against Inhalant Abuse (FUAIA) to the Consumer Product Safety Commission (CPSC) requesting a rulemaking to adopt mandatory safety standards “to address the hazards associated with aerosol ‘duster’ products containing the chemical 1,1-difluoroethane, or any derivative thereof.”

Following a 3–1 vote on Aug. 2, the CPSC grantediii the petition and directed staff to initiate a rulemaking to adopt a mandatory standard to address the safety hazards associated with the intentional inhalation of fumes from aerosol duster products containing HFC-152a. The lone Commissioner to vote against initiating a rulemaking noted that the CPSC lacked the expertise and resources to engage this problem effectively and that other Government agencies, such as the Substance Abuse & Mental Health Services Administration (SAMHSA) and the Dept. of Veterans Affairs, may be better equipped to address substance abuse and mental health.

As of writing this column, there is no indication which direction the rulemaking will go. It could involve a mandatory labeling standard, the required use of a bittering agent or combinations thereof.

Regardless, it is critical for Industry to be at the table for this rulemaking and explain what is feasible from a technology standpoint to address inhalant abuse, including what can be done beyond a labeling standard. The 2022 Staff Briefing to the Commission recommended that no bittering agent should be required in dusters due to a lack of efficacy; however, the current petition calls for the use of a bittering agent other than denatonium benzoate, and it is plausible that this option will be reexamined.

Additionally, during a meeting conducted by ASTM International with a range of stakeholders, consumer advocates recommended switching to compressed gas or using bag-on-valve technology. While these suggestions are not readily feasible, all available options must be fully evaluated. For example, if a duster were to use a compressed gas while containing the same weight of propellant, a considerably stronger container beyond what is allowed under the Hazardous Materials Regulationsiv would be necessary to manage the higher pressure from a compressed gas, compared to a liquefied propellant. The potential hazards of that extremely high pressure would have to be discussed and evaluated for potential failure, whether through accidental or intentional misuse. Such analysis and education must come from Industry experts; otherwise, the good intentions of addressing inhalant abuse could lead to other incidents.

Any mandatory safety standard should neither deter the appropriate use of a product nor draw attention to the fact that the product can be abused (in the instance of including a specific warning label, like that on cigarettes). No one organization can solve inhalant abuse. Stakeholders, including Industry, must work together to develop appropriate safety standards.
For more information about this rulemaking, please contact me at SPRAY

i  SPRAY, April 2023
ii  link
iii  link
iv  49 CFR 173.306

Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the U.S. Environmental Protection Agency (EPA) was required to select 10 substances to undergo the first risk evaluations under the revised Toxic Substances Control Act (TSCA). Since then, another 20 substances have been designated as High-Priority Substances and are undergoing risk evaluations. The EPA has struggled to meet the timelines for these reviews; however, it has mostly completed the risk evaluations and moved to the risk management stage, proposing regulations to manage unreasonable risks posed by these chemicals.

Companies using these compounds in their formulations should be aware of what is being proposed and what it means for their future use (or not). Here is where the EPA currently stands on a few of the first 10 chemicals:

Methylene Chloride
In November 2022, the EPA published a final revised risk determination for methylene chloride. After finding unreasonable risk for 52 out of the 52 conditions of use, with chronic liver effects being the most sensitive endpoint, the EPA determined that, as a whole chemical substance, methylene chloride presents an unreasonable risk of health injury.

In May 2023, the EPA proposed prohibitions for many of the uses of methylene chloride. This includes prohibiting its manufacturing, processing and distribution for all consumer products and most commercial and industrial applications. The EPA also proposed a workplace chemical protection program (WCPP), with exposure limits significantly lower than the permissible exposure limits (PEL) used by the U.S. Occupational Safety & Health Administration (OSHA) for the remaining allowed uses.

Notably, the proposal does not allow prohibited commercial and industrial applications to demonstrate compliance with the WCPP. The proposal does not include a de minimis level for allowing trace amounts of methylene chloride, so, as proposed, other substances may also be restricted as a result.

The EPA is currently reviewing the public comments and is expected to publish a final rule around June 2024. As proposed, the prohibitions related to consumer and commercial uses for manufacturers would take effect three months after the final rule’s publication, with additional time for products already in the supply chain to comply.

In December 2022, the EPA published a revised risk determination for perchloroethylene. After finding unreasonable risk for 60 out of the 61 conditions of use, it determined that, as a whole chemical, perchloroethylene presents an unreasonable risk.

In June 2023, the EPA proposed to ban the manufacturing, processing and distribution of perchloroethylene for all consumer products and most commercial and industrial applications. Similar to methylene chloride, the EPA has proposed a WCPP that is significantly lower than the OSHA PEL for perchloroethylene; however, the proposal includes a de minimis level for perchloroethylene as a trace contaminant in other substances.

By the time this column is published, the public comment period for perchloroethylene will have closed; the EPA is expected to issue a final rule around August 2024. As proposed, the prohibitions for manufacturers would take effect 12 months after the final rule’s publication, with additional time for inventory in the supply chain to run out or be recalled.

Trichloroethylene, 1-Bromopropane & n-Methylpyrrolidone
The EPA published revised risk determinations for Trichloroethylene, 1-Bromopropane and n-Methylpyrrolidone, finding that all three substances present an unreasonable risk under their conditions of use.

During the next few months, the EPA will publish risk management rules to address the conditions of use that present an unreasonable risk of health injury. We can make an educated guess about how these rules will look based on the proposals for methylene chloride and perchloroethylene.

In July 2023, the EPA published a draft supplement to the 2020 1,4-dioxane risk evaluation, which evaluated risks from exposure to 1,4-dioxane as a byproduct in several manufacturing processes and risks to the general population from 1,4-dioxane in the air and drinking water.

Also in July 2023, the EPA published a draft revised TSCA Risk Determination; after finding unreasonable risk for 22 out of the 34 conditions of use, the EPA determined that, as a whole chemical substance, 1,4-dioxane presents an unreasonable risk of health injury.

Comments on the 2023 draft supplement and draft revised TSCA Risk Determination are due to the EPA by Sept. 8, 2023, ahead of the Science Advisory Committee on Chemicals (SACC) peer review meeting.

Review of the first 10 chemicals under the revised TSCA has taken longer than the statutory deadlines required; however, the end of this process is in sight. It’s important to stay up to date on this activity. Please contact me with any questions or for more information at SPRAY

The aerosol industry has been facing a number of pressure points over the last several years, including tariffs, supply chain disruptions and labor shortages. However, new and revised regulations might be the most significant source of pressure—not just on the aerosol industry, but on all businesses.

While there are some regulations that require a heavy lift to comply, like meeting the stringent requirements of the California Air Resources Board’s (CARB) General Consumer Products Regulation, it’s the volume of recent regulatory activity that is serving as the greatest source of pressure for companies these days.

The Federal government recently publishedi an updated regulatory agenda, some of which the Household & Commercial Products Association (HCPA) is monitoring and engaging in for the aerosol industry.

Consumer Product Safety Commission
In 2021, Families United Against Inhalant Abuse (FUAIA) submittedii a petition to the Consumer Product Safety Commission (CPSC) requesting a rulemaking to adopt a mandatory safety standard for duster aerosol products. CPSC staff is expected to send a briefing package to Commissioners in August 2023 with recommendations to reduce the risk of intentionally inhaling aerosol dusters.

The CPSC is required by Congress to promulgate a final consumer product safety standard for button cell/coin batteries and consumer products containing button cell/coin batteries by August 16. If you sell aerosol products that utilize battery-operated dispensing systems, check the system to confirm what type of battery it uses.

Environmental Protection Agency
The U.S. Environmental Protection Agency (EPA) will continue implementing the Pesticide Registration Improvement Act of 2022 (PRIA 5), including bilingual labeling, activities related to the Endangered Species Act, the establishment of a training program for EPA staff, and the initiation of a third-party audit of the Pesticide Program.

The EPA should complete a couple of rulemakings under the American Innovation & Manufacturing (AIM) Act this year. This includes the allowance allocation methodology for 2024 and beyond, as well as adding restrictions on the use of certain hydrofluorocarbons (HFCs) (i.e., those with high global warming potential: GWP > 150).

The EPA is expected to finalize amendments to the National Volatile Organic Compound (VOC) Emission Standards for Aerosol Coatings. This rulemaking should align the EPA’s rule with CARB’s Regulation for Reducing the Ozone Formed from Aerosol Coating Product Emissions.

Under the Toxic Substances Control Act (TSCA), the EPA is in the process of proposing risk management rules for Existing Chemicals Program, including Methylene Chloride, Perchloroethylene, Trichloroethylene, 1-Bromopropane, n-Methylpyrrolidone and 1,4-Dioxane. Also under TSCA, the EPA will establish a process for conducting risk evaluations to determine whether a substance presents an unreasonable risk to human health or the environment; establish reporting requirements based on a chemical’s status in the Risk Evaluation/Risk Management process and update reporting requirements under the Chemical Data Reporting (CDR) regulation; develop significant new use rules (SNURs) on conditions of use identified as not currently ongoing in the final scope documents for High Priority Substances undergoing risk evaluations; and adding reporting and recordkeeping requirements for PFAS substances. The EPA has finalized new and amended rules concerning the assertion and maintenance of claims of confidential business information (CBI) under TSCA, which take effect in August 2023.

The EPA is developing a rulemaking to add certain PFAS to the list of chemicals reportable under section 313 of the Emergency Planning & Community Right-to-Know Act (EPCRA). A proposed rule is expected by the end of the year.

The EPA is also currently reconsidering the National Ambient Air Quality Standards (NAAQS) for Particulate Matter & Ozone.

Federal Trade Commission
It’s been more than a decade since the U.S. Federal Trade Commission (FTC) last updated its Guides for the Use of Environmental Marketing Claims (Green Guides). Earlier this year, the FTC solicited input from stakeholders on potential updates and changes to the Green Guides. While the public comment period has closed, it is likely that more activity will arise once the comments have been reviewed and analyzed.

Food & Drug Administration
Last year, Congress passed the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), which requires the U.S. Food & Drug Administration (FDA) to propose and finalize regulations to establish Good Manufacturing Practices (GMPs) for facilities that manufacture cosmetic products, propose fragrance allergen labeling requirements and establish testing methods for detecting and identifying asbestos in talc-containing cosmetic products. MoCRA will also require manufacturers to register their facilities with the FDA, submit lists of products with ingredient information to the Administration, report serious adverse events and maintain records supporting adequate safety substantiation. Further, the FDA now has the authority to order a mandatory recall if a company refuses to do so voluntarily.

Occupational Safety & Health Administration
The U.S. Occupational Safety & Health Administration (OSHA) is expected to finalize amendments to the Hazard Communication Standard (HCS) before the end of the year. The modifications are expected to align the HCS with the 7th edition of the Globally Harmonized System of Classification & Labeling of Chemicals (GHS), as well as incorporate some elements from the 8th edition.

OSHA is also exploring the possibility of modernizing the Process Safety Management standard, and related standards, with the goal of preventing major chemical accidents.

This is neither an exhaustive list of all the Federal activity that HCPA is monitoring, nor does it include any of the State activity that HCPA is tracking. For more information about these updates or other regulatory issues, please contact me at SPRAY


i Published on June 13, 2023. link
ii link