Industry awaits the California Air Resources Board (CARB) release of its next survey request. It was expected to be released during the Summer, but Summer has come and gone and there is still no survey. From discussions with CARB staff, it’s thought that the survey might cover products used during the COVID-19 pandemic to determine if the sales levels of cleaning products, hand sanitizers and disinfectants had returned to normal.
Likewise, CARB had stated that categories that had been dropped during the last rulemaking may resurface. However, to date, that has not happened. CARB staff has been busy reviewing the use of toxins in product categories. Therefore, this next survey may be larger and somewhat different than what Industry had been expecting.
Due to the last State Implementation Plan (SIP), staff will bring before the Board in 2027 a plan to reduce further emissions from Consumer Products. While 2027 seems far off, rulemaking can take 18–24 months to complete. Throw in a survey that then needs to be completed by Industry and reviewed by CARB staff, which could take a year, and it brings us to a three-year time frame. CARB staff only needs to have a plan to reduce emissions by 2027, not complete a rulemaking (the rulemaking could take place after the report to the Board). Hopefully, this will be the case because the time needed to complete a comprehensive rulemaking is dwindling.
We should see a survey released this Fall. CARB is scheduled to present at the Western Aerosol Information Bureau (WAIB) meeting this month in Lake Tahoe and will certainly be asked about the survey at that time.
Other U.S. States
Ohio and Michigan regulations become effective this year. Both States moved from Ozone Transport Commission (OTC) Model Rule II to OTC Model Rule IV. Make sure you have adjusted the sale of your products to comply with these rules.
There is still no final rule in Clark County, NV.
As a reminder, the Canadian Consumer Product Regulation becomes effective on Jan. 1, 2024. While it is similar to the CARB regulation, there are some differences, which will be detailed in next month’s column.
On Sept. 6, the British Aerosol Manufacturers’ Association (BAMA) held a meeting in London on Air Quality. The issues of Air Quality and volatile organic compound (VOC) reduction have been evolving in the UK for several years. The issue is not that aerosol VOC emissions are growing significantly in the UK, but that other sources of emissions are being reduced, such as vehicle and industrial emissions. This is similar to the situation we in the U.S. find ourselves in, especially in the South Coast Air Quality Management District (SCAQMD). Consumer Product emissions soon will be the primary category in SCAQMD.
BAMA has been formulating a plan that will assist Industry in working with regulators to prevent the type of regulation currently in place in California. The goal is for Industry to develop a strategy to reduce emissions from aerosols in different ways. For example, one strategy would be to compress or concentrate an aerosol product so that it could potentially offer double the amount of uses. By doing this, fewer cans will be used, thus fewer emissions will be produced. This will take time and we’ll have to re-educate consumers on how to use the product all over again.
There were two presentations during the London meeting; the first explained the use of dimethyl ether (DME) to replace some solvents with water, thus lowering VOC emissions. This is nothing new in the U.S., as most manufacturers use this technique where possible.
The second presentation was on the use of N2 (nitrogen) or compressed gas. This technique, as we know, is very controversial because when compressed gas is used, more diluent is then needed. Typically, especially for Personal Care products (which was the example), ethanol is used. As we have learned, replacing liquified propellants with ethanol raises a product’s reactivity, thus creating more ozone formation, which is not the goal. Also, removing liquefied propellants and adding ethanol does very little to remove overall VOC emissions.
I credit BAMA with working with regulators before actual regulations are formed. In addition, BAMA is trying to encourage Industry to start working on this issue now to possibly prevent aerosol regulation in the future. Their goal is lofty, but is worthy of merit, and we wish them luck. SPRAY
There has been no notice yet on the proposed Consumer Product Survey that California Air Resources Board (CARB) staff proposed earlier this year. Originally, staff had stated that the Survey would be out this Summer. Well, Summer is all but gone and it has not yet appeared.
CARB has stated that the Survey would likely concern product categories that may have been affected by the COVID-19 pandemic, mainly cleaning products such as disinfectants and sanitizers, as well as hand cleansers. In addition, CARB also stated that product categories that were dropped in the last rulemaking (for various reasons) would now also be targeted, such as Floor Cleaners, Sunscreens and Charcoal Lighter Material.
In recent discussions, staff indicated it may be targeting other product categories that may contain toxic ingredients. Recently, due to some publications stating the amount of toxic ingredients in consumer products, CARB staff has been looking into this issue, as well. Therefore, at this time, it is anyone’s guess which product categories will be on the next CARB survey or the timing of the survey. We will need to wait and see.
As reported earlier, the State of Michigan finalized updates to its April 18, 2023, Consumer Product rule. Michigan went from Ozone Transport Commission (OTC) Rule II to OTC Rule IV. This rule was adopted by reference. Confusing the rule was the actual timing. Michigan had stated that the rule became effective on Jan. 1, 2023; however, the rule had not been finalized yet and the actual date of the final rule was April 18. In addition, Michigan stated that there would be no enforcement. By now, manufacturers and marketers should only be selling compliant product into the State of Michigan; anything produced before April 18, is legal for sale through the sell-through provision.
The State of Ohio Consumer Product Rule also moved from OTC Model Rule II to OTC Model Rule VI. The compliance date was July 1, 2023. Thus, all product manufactured for sale after July 1 should be in compliance. Ohio has a sell-through provision for all product produced before July 1.
Clark County, Nevada
Earlier this year, Clark County, Nevada (the home county of Las Vegas), proposed a very stringent consumer products volatile organic compound (VOC) regulation based on OTC Model IV. The original proposal called for an effective date in a very short time frame, as well as no sell-through provision.
Fortunately, the latest draft looks much better. We are pushing for a one-year effective date and a one-year sell-through. Work continues on this regulation, which we are monitoring.
It is worth remembering that the Canadian Consumer Products Regulation becomes effective Jan. 1, 2024, for most product categories. There is a sell-through for products manufactured before this date; however, the wording in the regulation appears to require that the product be in Canada before the effective date. Therefore, to be compliant, send product to Canada before the effective date; there are only four months left before this rule becomes effective. SPRAY
Friendly reminder, Environment & Climate Change Canada (ECCC) adopted the Volatile Organic Compound (VOC) Concentration Limits for Certain Products Regulation. This is the Canadian version of the VOC regulation for Consumer Products. This rule was adopted in 2022 and comes into effect Jan. 1, 2024 for the majority of products. For Disinfectants, the regulation comes into Jan. 1, 2025.
There are approximately 130 product categories and subcategories that will be affected. This regulation was developed using the California Air Resources Board (CARB) Regulation on VOC for Consumer Products from 2010. However, this regulation should be reviewed carefully. While the Product Category VOC limits are similar, the definitions are somewhat different. The CARB definitions are very specific and detailed for the Product Categories. The ECCC definitions are not as detailed, which, depending on your product, could be a benefit or detriment.
Numerous product category definitions are similar, but some of the product category definitions are loosely defined, typically not detailing what is not included in the category. A perfect example is the Spot Remover definition. Under CARB, Spot Remover only pertains to cloth or fabrics. However, in Canada, the Spot Remover product category does not have any description. Thus, a Spot Remover could include products used for hard surfaces. Does this help your company’s products or hurt those products? More importantly, how will Canadian Enforcement perceive these products? Will there be Canadian Enforcement? Only time will tell.
There are only four months left to get products in compliance with this Regulation.
Ozone Transport Commission
On June 14, the Ozone Transport Commission (OTC) held its annual meeting virtually. The OTC is a multi-State organization composed of 12 States and the District of Columbia. The U.S. Environmental Protection Agency (EPA) is also a non-voting member of the OTC. This organization deals with air issues throughout the Northeast States to keep regulations consistent. OTC has five model regulations that affect VOC limits in Consumer Products. Most States have adopted either Model Rule II or Model Rule IV. Currently, only Colorado has adopted Model Rule V—as a contingency measure only.
During the meeting, the Stationary Source Committee reported that no new Model Rule Development is planned for Consumer Products as this time, which is good news for our Industry. However, this does not mean that States within the OTC will not update their own State Regulations. For example, New Jersey will likely update its Model Rule II to Model Rule IV this year. However, there has been no news on this proposal yet.
Lately, CARB has been quiet on the Consumer Products VOC front. CARB has stated that it will be releasing a Consumer Products Survey sometime this year for use in a future rule-making. Exactly what products will be surveyed is not known at this time; we can only speculate based on CARB comments.
These products include those used heavily during the COVID-19 pandemic, such as hand cleaners, disinfectants and similar cleaning products. Also, from discussions with CARB, it appears as if the Aerosol Coatings category may be reviewed for further regulation. Whether these products will be in the survey or not is yet to be determined.
Finally, there were numerous questions from CARB concerning sunscreens during our Aerosol 101 with the organization in May; therefore, it will be no surprise if these products appear on the survey. SPRAY
In May, the aerosol industry presented an educational program to the California Air Resources Board (CARB). The event was held jointly by the National Aerosol Association (NAA), the Household Commercial Products Association (HCPA), the Western Aerosol Information Bureau (WAIB) and the Personal Care Products Council (PCPC) at CARB Enforcement offices in Sacramento.
On May 16, the NAA and WAIB took the lead on a full day of presentations on the aerosol package. The 25 CARB staff members in attendance were from the Consumer Products & Air Quality Assessment Branch, the Consumer Products Enforcement Branch and the Northern Laboratory Branch (Special Analysis section). This is the staff that writes amendments to, as well as enforces, the Consumer Product rules. The Northern Laboratory Branch staff is responsible for testing Consumer Products for compliance with Consumer Products Regulations. It works closely with the Enforcement Branch. The turnout and interest from the CARB staff was amazing.
Industry had 14 presenters on the following topics:
• Aerosol industry overview
• Aerosol valves
• Packaging containers
• Solvents/low vapor pressure (LVP) solvents
• Aerosol caps
• Aerosol R&D
• Manufacturing overview
• Aerosol coatings
• Innovative product exemption
In attendance were 25 Industry members representing a combined 450 years (at least) of experience in the aerosol industry.
The meeting kicked off at 9:00am and lasted until 4:30pm. CARB staff asked great questions and significant dialogue continued throughout the day. This was an excellent opportunity for Industry to educate CARB staff on the aerosol product form. Likewise, it was also an excellent opportunity for CARB staff to ask questions and discuss areas of concern in a laid-back atmosphere without the pending pressure of rule amendments hanging in the air. It truly was a win-win event for both CARB and the Aerosol Industry. Ravi Ramalingam, Chief of Consumer Products & Air Quality Assessment Branch, stated:
The Aerosol Summit provided a truly excellent forum for CARB staff to glean invaluable insights from, and share perspectives with, participating industry experts on a wide variety of topics. Hearty thanks to all who organized the events and traveled to meet with us! —Ravi Ramalingam
In my 35 years in the industry, I cannot think of another single agency that has had such a significant and long-lasting effect on the aerosol industry as CARB. This event was a strategic opportunity for us to work with CARB and we should initiate similar events on a more routine basis.
On May 17, HCPA and PCPC held an educational program on Consumer Products, specifically non-aerosol issues. Similar to the first day, the same staff attended the following presentations:
• R&D on new consumer products and reformulations
• Considerations for cosmetics and over-the-counter products
• Considerations for Federal Insecticide, Fungicide & Rodenticide Act (FIFRA)-regulated products
• Ethanol vs. isopropyl alcohol (IPA)
• Multi-purpose lubricants alternative compliance options
Again, 25 CARB staff members were present. Fourteen industry members were in attendance, with eight presenting. As with the day before, CARB and Industry had very healthy dialogues; CARB asked numerous questions and was engaged throughout the day.
The entire educational program, held over two days, was truly beneficial for all involved. SPRAY
On April 18, the Air Quality Division of the Michigan Dept. of Environment, Great Lakes & Energy finally promulgated its Final Rule for both Consumer Products and Architectural Coatings. Having gone through the legislative process, this ruling is now complete.
Please remember that Michigan had placed a Jan. 1, 2023, compliance date on both regulations. Until the rule was final, the State could not enforce this Jan. 1 rule date. Michigan staff has stated during a public webinar that it does not intend to enforce the rule. To be cautious, all products produced after April 18, 2023, should be compliant with the new Ozone Transport Commission (OTC) Model Rules. Product produced after April 18 should be made compliant with the OTC Consumer Products Model Rule IV and OTC Architectural Model Rule II.
Even with Michigan’s staff statement of no enforcement, companies should strive to come into compliance as soon as they can, even though there is an unlimited sell-through. If a product is picked up a year or 18 months from now, and was produced after April 18, 2023, the Michigan Air Quality Division could enforce on that product. If that happened, a company would then need to fight that enforcement action. Chances are good that the company would win, but company resources would have to be spent on that fight. In another scenario, Michigan Air Quality Division staff could turn over a year from now and new staff may have no knowledge of these statements of no enforcement. It is better to be safe than sorry.
On April 21, 2023, the OTC held a virtual stakeholders meeting. Francis Seitz from the New Jersey Dept. of Environmental Protection (DEP), who leads the OTC Stationery & Area Sources Committee, presented Committee updates. The good news is that there is no movement by OTC to develop any new Model Rules for Consumer Products or Architectural Coatings.
Seitz did mention that New Jersey will be updating its Consumer Products Rule to OTC Model Rule IV, likely this year. Therefore, we need to monitor this process to ensure consistency with the OTC Model Rule. While we dislike changes in Rules, it would be nice if all States (except California) would settle on one OTC Model Rule; this would make compliance (and life) much easier.
Other OTC States
Ohio’s OTC Rule change comes into effect on July 1, 2023, so all product produced after July 1 for sale in Ohio needs to be in compliance with OTC Model Rule IV. All products produced before this date, and properly date coded, have an unlimited sell-through. Only one month to go!
Colorado has set up a contingency Consumer Products Rule using a variation of OTC Model V that only becomes effective if the State fails to comply with the Air Quality standards. We will not know if this contingency measure is needed for at least two years.
Virginia is proposing to add a contingency Consumer Products Rule using OTC Model Rule IV. To reiterate, this is only being proposed.
New Jersey, as previously explained, will likely move from OTC Model Rule II to OTC Model Rule IV this year. The timing is currently unknown.
In Nevada, only Clark County (Las Vegas) is considering moving to OTC Model Rule IV. Clark County’s first draft left a lot to be desired, as it proposed a 30-day sell-through. Luckily, they are in the process of re-writing that proposal; we will need to wait and see the outcome.
Just a reminder that the Canadian Consumer Products Rule becomes effective on Jan. 1, 2024—therefore, only seven months to go. SPRAY
Industry is preparing to provide the California Air Resources Board (CARB) with some training. The National Aerosol Association (NAA), Western Aerosol Information Bureau (WAIB), Household & Commercial Products Association (HCPA) and Personal Care Product Council (PCPC) will be in Sacramento on May 16–17 to present information to CARB staff on our products.
On May 16, CARB will be given an Aerosol 101. The last time we presented an Aerosol 101 to CARB was in 2018, before its rulemaking.
NAA & WAIB will lead the effort on the Aerosol 101, which will focus on all the components used in an aerosol. Featured will be valves, cans, propellant, solvents, caps, cartons, and other components necessary to develop an aerosol. In addition, Industry will focus on mandatory testing and regulatory requirements necessary to develop a safe and compliant aerosol product. CARB staff may ask for certain aerosol products to be highlighted as they have done in the past. Lastly, a summary of how an aerosol is manufactured will be reviewed.
On May 17, HCPA and PCPC will lead the industry effort to train the staff on non-aerosol products. Like the aerosol program, the non-aerosol products presentation will discuss components and focus on testing. Additionally, the training will cover the different non-aerosol forms and packaging that can be used, such as pumps, squeeze bottles, tubes, and tubs. CARB will likely request certain product categories be highlighted.
Participating from CARB will be the Planning, Enforcement and Laboratory divisions. Most likely, a representative from Legal and Management will also be present. It is beneficial for Industry to perform this type of training, as it is an excellent time to network and progress toward relationship-building, especially since we are currently not in a rulemaking situation (rulemaking always makes interaction more difficult).
Industry looks forward to the opportunity to interact with CARB staff on this issue.
On April 4, the Canadian Consumer Specialty Products Association (CCSPA), HCPA and NAA presented a 90-minute webinar to Industry. The webinar covered the Environment & Climate Change Canada (ECCC) regulation on volatile organic compound (VOC) concentration limits for certain products, commonly known as the Canadian Consumer Product VOC Regulation. Canada has been working on regulating VOCs in consumer products for more than 25 years and finally has a VOC regulation.
The regulation will become effective Jan. 1, 2024, for most products and effective Jan. 1, 2025, for disinfectant products. Remember, there is an unlimited sell-through for products produced before the effective date. This means that all product produced before Jan. 1, 2024, can be sold forever, given the product is properly date coded. The regulation is based on the 2010 Consumer Product VOC limits from the CARB regulation. The webinar covered the regulation, describing what is similar and what is not.
Even though ECCC tried to copy the CARB regulation, numerous differences remain. The biggest difference is in definitions. With CARB, we spent painstaking hours to get the definitions to be very specific, whereas with ECCC, some categories have little to no definition. This will make complying with the regulation more difficult. However, it will make enforcing the regulation even more difficult.
The webinar had close to 200 attendees. Numerous questions were asked and a great deal of valuable information was presented. The webinar was recorded and, if interested in reviewing it, please email—Simon Kinsman, Director of Regulatory Affairs, CCSPA: firstname.lastname@example.org; Nicholas Georges, Senior VP, Scientific & International Affairs, HCPA: email@example.com; Doug Raymond, Industry Consultant, Raymond Regulatory Resources (3R), LLC: firstname.lastname@example.org. SPRAY
As discussed in the March issue, the California Air Resources Board (CARB) was working on the Innovative Product Exemption (IPE) Guidelines for the compressed and liquefied products provision. This provision was added to the CARB regulation during the last rule development. I predicted the guidelines would be out by the end of the first quarter and CARB staff beat this prediction by more than one month. On Feb. 16, CARB posted the Innovative Product Exemption Guidelines on its website: ww2.arb.ca.gov/our-work/programs/consumer-products-program/complying-regulations/innovative-product-exemption.
The Guidelines include application forms and information requirements to apply for, and receive, the IPE. For most, applications for consumer testing will not be needed. Consumer testing is the most costly and time-consuming part of the original IPE; the new provisions for compressed and liquefied product exemption removed the need for consumer testing to develop a representative product sample.
Be sure to check out the new Guidelines if your company produces hairspray, dry shampoo or personal fragrance products.
On Feb. 8, the Clark County Dept. of Environment & Sustainability (DES) held a webinar to present the development of a consumer products volatile organic compound (VOC) regulation for Clark County only, not the entire State of Nevada. The original proposal from staff was:
• 30 days to comment
• A further 30 days for a public notice
• Set a hearing by June 6, 2023, for a June 20, 2023, public hearing
• Have the regulation effective by July 4, 2023
Worse yet, staff proposed a sell-through of 30 days. Yes, you read that right—a 30-day
Fortunately, when Industry explained during the webinar why there was no way to have a regulation in place and effective by July 4, nor a 30-day sell-through for our products, staff agreed to talk with us off-line.
The following week, several Industry members explained to Clark County DES staff in great detail the complications of trying to develop and implement a regulation in their time frame, as well as the impossibility of a 30-day sell-through. Staff understood our concerns and is in the process of reworking its proposal. We will need to wait and see how much gets changed.
Other State VOC regulations
Ohio’s Consumer Products VOC regulation becomes effective July 1, 2023, with an unlimited sell-through.
We are still working on the Michigan regulation.
Finally, we were just notified that it is likely New Jersey will start a rule development on Consumer Product VOC regulation this Summer. SPRAY
Currently, the California Air Resources Board (CARB) is working on developing a survey for product categories, due out this year. I believe the survey will concern cleaning products, disinfectants, sanitizers and possibly hand sanitizer, as well. We will need to wait and see which product categories CARB decides to target.
CARB staff is also working on the guidance document for the new Innovative Compressed Gas Propellant Product and Innovative Liquefied Gas Propellant Product category.
Remember, these two provisions were finalized during the 15-day comment period following the 2021 CARB Executive Board meeting.
These two provisions were established to allow manufacturers a way to reformulate products to meet more stringent volatile organic compound (VOC) limits. The provisions are only available for the Finishing Hair Spray, Dry Shampoo and Personal Fragrance Product categories. The new Innovative Product Exemption (IPE) provisions were developed as a way to discourage the use of more HFC-152a and to promote further use of compressed gases, such as CO2 and nitrogen. However, through this process, the provisions also morphed into the use of reactivity.
The use of the Innovative Liquefied Gas Propellant Product exemption can lower the need for HFC-152a, as well as provide a mechanism to use more Liquefied Propellant in a product. This alternative way to reformulate utilizes the concept of reactivity and may turn out to be a simpler pathway to reformulate a company’s products.
CARB developed these provisions as alternative ways to reformulate and provide Industry with the ability to innovate. The original IPE was developed to assist Industry in formulating products that may contain more VOC per product, but due to the way the product is used, the emissions are equal to or less than a standard product.
CARB has also provided Industry with a table that consists of representative formulas for three product categories: Finishing Hair Spray, Dry Shampoo and Personal Fragrance Product. This is of significant benefit to the aerosol industry. By CARB providing these representative product formulations, it relieves Industry of the burden of having to conduct long and expensive consumer testing to show what a representative product is. This removes most of the cost—shouldered by the manufacturer—that had been part of the original IPE.
Now, if a new IPE Liquefied product meets or has a lower Maximum Incremental Reactivity (MIR) than the representative product formula in the table, your product is almost done being reformulated. Remember, the new IPE product must achieve a 50% greenhouse gas reduction from the original formula and the product must perform similarly to the original formula.
CARB is in the process of developing a detailed guidance document to assist manufacturers in using the IPE provision for compressed and liquefied gases. CARB staff will likely be finished with this guidance document by the end of the first quarter of 2023.
If your company produces a Finishing Hair Spray, Dry Shampoo or Personal Fragrance Product, an in-depth review of the new IPE provision will likely benefit your product reformulation.
The Ohio Environmental Protection Agency (Ohio EPA) has finalized its rulemaking to update Ohio Administrative Code (OAC) 3745-112, Consumer Products Rules. As a reminder, this update aligns its VOC regulation for consumer products from the Ozone Transport Commission (OTC) Phase II Model Rule to the OTC Phase IV Model Rule.
Companies will need to comply with the updated VOC limits on July 1, 2023; this gives companies only four months to comply. Remember, there is an unlimited sell-through for product produced before the effective date. SPRAY