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EPA Withdraws Health & Safety Study Rule for Cadmium in Consumer Products

Beveridge & Diamond, P.C., December 18, 2012

The U.S. Environmental Protection Agency (EPA) is withdrawing its controversial final rule, published on December 3, 2012,[1] that would have required manufacturers (including importers) of cadmium or cadmium compounds that have been or are reasonably likely to be incorporated into consumer products to report unpublished health and safety studies under section 8(d) of the Toxic Substances Control Act (TSCA).

In an email bulletin sent December 14, 2012,[2] EPA explained the reasoning behind its relatively quick reversal as follows:

Based on several letters asking questions and raising concerns about the scope and extent of the immediate final rule that indicate that there is significant confusion and uncertainty within certain industrial sectors concerning the rule, EPA has decided to withdraw the immediate final rule . . . . EPA will be considering the questions and concerns raised in response to the immediate final rule and next steps with regard to this rule.  EPA will also continue to work with the Consumer Product Safety Commission (CPSC) to reduce exposure to cadmium in consumer products generally, and especially those consumer products used by or around children, such as children’s metal jewelry.

EPA did not accept comments to the docket for the rule, but information showing why the rule should be withdrawn was permitted to be submitted to EPA for 14 days after publication, or by December 17, 2012.

An over-arching issue was whether the rule would serve its intended purpose, which appeared to be to help the Consumer Product Safety Commission (CPSC) limit exposure to cadmium and cadmium compounds in toy jewelry and children’s jewelry.  Shortly before EPA issued its section 8(d) rule, CPSC decided not to adopt rules on cadmium in toy jewelry and children’s jewelry because two ASTM standards now set limits on cadmium levels in those products.[3]  Thus, it is unclear what purpose would be served by compliance with EPA’s section 8(d) rule.

Other questions and concerns were raised regarding the broad scope of application of the rule to all consumer products,[4] including articles, and the failure of the economic analysis to take the full scope of application into account.  Stakeholders also expressed concerns about the lack of a de minimis threshold and the broad scope of studies that the rule had sought.  They further questioned EPA’s definition of the term “consumer product,” as it did not include exclusions from that term that appear in the definition in the Consumer Product Safety Act.

In addition, some objected to EPA’s use of an immediate final rule, which provided no opportunity for comment.  In the 1980s, EPA adopted a procedure to allow it to adopt immediate final section 8(d) rules adding chemicals added by the Interagency Testing Committee to the Priority Testing List, but only under certain conditions.  Commenters questioned whether the conditions had been met and whether, as a policy issue, EPA should have chosen to use this procedure in the absence of an urgent need to obtain studies.

EPA will sign a Federal Register notice announcing this decision no later than the January 2, 2013, effective date of the immediate final rule.

For more information, please contact Mark N. Duvall, mduvall@bdlaw.com, 202-789-6090, or Alexandra M. Wyatt, awyatt@bdlaw.com, 202-789-6086.  For a PDF version of this alert, click here.


[1] Beveridge & Diamond, P.C., “EPA Requires Manufacturers and Importers to Submit Studies on Cadmium in Consumer Products” (Dec. 5, 2012), http://www.bdlaw.com/news-1417.html; EPA, Health and Safety Data Reporting: Addition of Certain Chemicals; Final Rule, 77 Fed. Reg. 71561 (Dec. 3, 2012), available at http://www.gpo.gov/fdsys/pkg/FR-2012-12-03/pdf/2012-28840.pdf..

[2] EPA, Email Bulletin: “Withdrawal of Immediate Final Rule on Cadmium or Cadmium Compounds in Consumer Products,” sent Dec. 14, 2012, available at

http://content.govdelivery.com/bulletins/gd/USAEPA-622d93.

[3] See CPSC, Statement on the Commission’s Vote to Terminate the Petition to Regulate Cadmium Content (Oct. 3, 2012), available at http://www.cpsc.gov/pr/nord10032012.pdf.

[4] See, e.g., EPA, response letter to The Fertilizer Institute (Dec. 7, 2012), available at http://www.epa.gov/oppt/chemtest/pubs/Cd_Fertilizer_Institute_Letter_12-7-12.pdf.  

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