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Mercury in the News: Recent Developments

Beveridge & Diamond, P.C. - Client Alert, March 13, 2009

Mercury has been long recognized as a hazardous substance, and efforts to reduce human and environmental exposure to the toxin are commonly on the agendas of state, federal, and foreign governmental bodies.  The U.S. Environmental Protection Agency (“EPA”), in particular, continues to play an active role in addressing mercury issues.  In 2008, and already in 2009, mercury has become an important priority in a wide variety of regulatory contexts.  This article summarizes those recent developments.  It covers international developments; U.S. and state legislation; EPA measures under several statutes; and developments related to mercury in food.

Mercury is used primarily in manufacturing processes and products.  Common mercury-containing products include batteries, fluorescent lamps (i.e., light bulbs), dental amalgam, thermometers, and other medical devices.  Legislatures and agencies have expressed concern for potential exposure to mercury through the use and/or disposal of these products, inhalation of mercury vapor, or, most commonly, consumption of mercury-contaminated fish.  With recent developments touching on all of mercury’s various forms, mercury issues will be worth monitoring in the coming year.

International Developments

Mercury Treaty Negotiations

International efforts to reduce mercury releases and uses have surfaced over the last several years, the most recent of which is a proposed binding international mercury treaty.  The treaty would likely include provisions to control the use of mercury in products, as well as the production processes that use or emit mercury, such as coal-fired power generation or certain chlor-alkali production, and other matters such as trade in elemental mercury and mercury mining. 

At the February 16-20, 2009 United Nations Environment Programme (“UNEP”) Governing Council meeting in Nairobi, the U.S. delegation endorsed negotiations for a new global mercury treaty.  The endorsement marked a stark reversal of the Bush Administration position favoring voluntary measures as opposed to a binding international agreement.  Subsequently, the environment ministers from over 140 countries decided to launch negotiations on an international mercury treaty, and called on the Executive Director of UNEP to convene an International Negotiating Committee (“INC”) to begin work on a treaty.  An Open-Ended Working Group will meet in late 2009 to prepare for the first INC meeting in 2010.  The INC has set a goal of 2013  to have the treaty completed.  The scope of the treaty’s mandate is extremely broad, covering all uses and potential sources of mercury emissions.  The treaty negotiations will develop a strategy to “reduce the demand for mercury in products and processes” and to “address mercury-containing waste.”  The INC is directed to consider, among other things, the “technical and economic availability of mercury-free alternative products and processes, recognizing the necessity of the trade of essential products for which no suitable alternatives exist.”

The environmental ministers also agreed that accelerated action under a voluntary Global Mercury Partnership is needed while the treaty is being finalized.  The Partnership plan includes, among other points, reducing mercury use in products and processes and raising awareness of mercury-free alternatives.  The initial meeting of the Partnership Advisory Group will take place in Geneva from March 31 - April 2, 2009.  More information on the results of the Governing Council meeting is available at http://www.chem.unep.ch/MERCURY/.

The international process will likely be a significant new driver for mercury issues in the U.S. -- compounding the existing attention that mercury is already receiving by NGOs, regulators, and legislators at the federal and state levels.  

Foreign Regulation of Mercury

In Canada, Environment Canada is currently considering the comments it received from the 2008 consultation on a December 2007 proposed regulation prohibiting the “import, manufacture, and sale of all mercury-containing products with the exception of dental amalgam and fluorescent lamps” under the Canadian Environmental Protection Act 1999.  Although fluorescent lamps would be excluded from the prohibition, they would be subject to mercury content restrictions.

In Argentina, the head of the Environment Committee in the Argentine Senate presented a bill that incorporates both the European Union Directives on Restriction of Hazardous Substances (“RoHS”), Directive 2002/95/EC, and on Waste Electrical and Electronic Equipment (“WEEE”), Directive 2002/96/EC, with a new concept of “Extended Individual Producer Responsibility” (Bill S-3532-08).  The bill would require, among other things, that producers and importers design devices that reduce to a minimum or totally eliminate the six RoHS substances, which include mercury, and any other substances determined to be contaminants.  Currently, the bill remains in committee for consideration.

In China, the Ministry of Industry and Information Technology promulgated the “Development Procedures for the Priority Management Catalogue for Pollution Control and Management of Electronic Information Products” (“Procedures”).  The Procedures, among other things, set forth general criteria the Chinese government will consider in selecting Electronic Information Products (“EIPs”) for inclusion in the China RoHS Catalogue (a list of specific products or product categories).  Ultimately, the EIPs listed in the China RoHS Catalogue must comply with China’s substance restrictions as defined by China’s maximum concentration value requirements.  China’s version of RoHS targets mercury as well as other substances.

U.S. Legislative Developments

Mercury Legislation:  Federal

On October 14, 2008, President Bush signed into law the Mercury Export Ban Act of 2008, Public Law 110-414 (“Export Ban”), introduced by then-Senator Barack Obama.  By amending the Toxic Substances Control Act, the Export Ban prohibits the sale, distribution, and transfer of elemental mercury by federal agencies immediately, and prohibits the exportation of elemental mercury effective January 1, 2013.  It also charges the Department of Energy with the responsibility for long-term management and storage of elemental mercury generated within the United States.  Key findings of the Export Ban include, among others, that: (1) releases from products commonly known to contain mercury remain substantial in developing countries, and (2) the European Commission has proposed a regulation to ban elemental mercury exports from the European Union by 2011. 

The Export Ban, a bipartisan effort, passed with overwhelming majorities from Democrats and Republicans.  It was also met with collaborative industry support, including that of the American Chemistry Council, the Natural Resources Defense Council, the Environmental Council of the States, the Chlorine Institute, and the National Mining Association.

Mercury Legislation:  States

Many states have enacted legislation focused on reducing the release and use of mercury in products and waste.  One way in which states are working to achieve this goal is by banning or burdening the sale and/or distribution of numerous mercury-added products -- products containing intentionally-added mercury compounds.  Common examples of such products include thermometers, fluorescent lamps, automotive switches, manometers, switches and relays, and measuring devices.  Other common provisions of state mercury legislation include prohibitions on the sale of mercury-containing packaging materials, phase-outs of mercury in various products over a pre-determined timeline, labeling of mercury-containing products, mandatory take-back requirements for mercury-containing products, and reporting of all products containing mercury sold in the state.

Particular state legislative developments of 2008 included New Hampshire’s enactment of a new law concerning mercury-added thermostats.[1]  Specifically, manufacturers of such products sold in New Hampshire now are required to establish and maintain a department-approved collection and recycling program for out-of-service mercury-added thermostats from contractors, service technicians, and residents.  The Act also prohibits the installation of mercury-added thermostats beginning July 1, 2008.  Also in 2008, Vermont passed a law that requires original equipment manufacturers of mercury thermostats to provide a $5 cash incentive for residential and commercial thermostats that are turned in for collection.[2]

Mercury legislation has continued to proliferate at the state level in 2009.  There are bills relating to mercury in products in 12 states:  California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, New York, Rhode Island, Vermont, and Washington. 

Many of the pending bills aim to ban or limit the sale and/or distribution of mercury-added products.  For example, bills imposing requirements on manufacturers, distributors and/or retailers of mercury-containing thermostats and/or thermometers are pending in Connecticut (H.B. 6113), Illinois (H.B. 2415; S.B. 1690), Massachusetts (H.D. 2226), Montana (S.B. 424), New York (A.B. 707), and Rhode Island (H.B. 5794). 

Other pending bills impose disposal restrictions.  For example, a Washington bill (H.B. 1799) would require all commercial, industrial, retail and state facilities, including learning institutions, to recycle their mercury-added general purpose lights.  Similarly, a Vermont bill (H.B. 94) would require manufacturers of mercury-added lamps to establish a comprehensive recycling program for such lamps. 

In addition, state legislatures have proposed bills in 2009 that would impose packaging and labeling requirements on mercury-added products.  For example, an Illinois bill (H.B. 2429) would require manufacturers of mercury-containing compact florescent lamps and mercury-containing compact florescent bulbs to display certain information on the packaging of those products.  A Michigan bill (H.B. 4278) would require manufacturers of mercury-added products to label each product intended for sale so as to inform the purchaser that the product contains mercury or a mercury compound. 

State-by-state listings of mercury-related bills and legislation are available at the following websites:

  • According to the Lowell Center for Sustainable Production, there are 130 state laws related to mercury in products in effect today.  States will likely continue to actively address mercury-reduction issues throughout 2009.

EPA Developments

ChAMP Developments

In November 2008, EPA initiated two efforts addressing mercury under its Chemical Assessment and Management Program (“ChAMP”).  ChAMP is designed to fulfill U.S. commitments made under the Security and Prosperity Partnership of North America to help ensure the safe manufacture and use of chemicals.  Under ChAMP, EPA issued interim evaluations of certain mercury-containing products and the availability of mercury-free alternatives.  The evaluations addressed switches, relays/contactors, flame sensors, button cell batteries, measuring devices, toys, jewelry, and novelty items.  EPA’s evaluation concluded that mercury in products is of special concern and that further analysis for action is a high priority. 

In addition, in an effort to promote the use of mercury-free alternatives, EPA developed a searchable database of publicly-available information on consumer and commercial products that contain mercury and their potential mercury-free alternatives.  More information on ChAMP is available at http://www.epa.gov/CHAMP/.

Clean Air Act Developments

On February 23, 2009, the U.S. Supreme Court dismissed EPA’s petition for certiorari in the case of EPA v. State of New Jersey, following the Obama Administration’s request to withdraw the petition.  As a result, the 2008 D.C. Circuit’s ruling vacating EPA’s Delisting Rule and Clean Air Mercury Rule (“CAMR”) stands firm.[3]  The history of this case involves EPA’s promulgation of two final rules: (1) removing coal and oil-fired electric utility steam generating units from the list of regulated sources under section 112 of the Clean Air Act (“CAA”); and (2) among other things, establishing total mercury emissions limits for new coal-fired plants.  In 2005, EPA removed coal and oil-fired power plants from the list of sources regulated under section 112.  Thereafter, EPA promulgated CAMR under section 111.  The D.C. Circuit held that EPA’s removal of these power plants from the section 112 list violated the CAA, which requires EPA to make specific findings before removing a listed source.  EPA never did so.  As a result, because section 111 cannot be used to regulate sources listed under section 112, the CAMR regulations for such sources failed as well.  According to the request to withdraw the certiorari petition, EPA will “develop appropriate standards to regulate power plant emissions under section 112.”

On February 3, 2009, Rep. Johnson (D-Texas) introduced the “Mercury Emissions Reduction Act” (H.R. 821), which would require EPA to promulgate standards under section 112(c)(6) of the CAA for mercury emissions from electric utility steam generating units, to be effective within one year after enactment of the bill.  The bill cites the 2008 D.C. Circuit decision.   

CERCLA Developments

Another mercury-related development concerns the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  In December 2008, the Agency for Toxic Substances and Disease Registry included mercury, methylmercury, and mercuric chloride on a proposed list of substances that will be evaluated for toxicological profile development.  The list concerns hazardous substances that are most commonly found at facilities on the CERCLA National Priorities List, and identifies those determined to pose the most significant potential threats to human health.

Water Developments

On December 29, 2008, EPA’s Office of Water entered an agreement with the American Dental Association and the National Association of Clean Water Agencies to promote best management practices for mercury-containing dental amalgam.  According to the National Association of Clean Water Agencies, dental clinics are the main source of mercury discharges to publicly owned wastewater treatement plants -- contributing as much as 50% of the mercury entering such wastewater treatment plants.  In response, the parties executed a Memorandum of Understanding which commits them to establish and monitor a Voluntary Dental Amalgam Reduction Program.  The Program recommends the installation and maintenance of amalgam separators and the recycling of the amalgam waste.  Through this collaborative effort, the parties will strive to build awareness and effect change at all levels.

In January 2009, EPA published its final Guidance for Implementing the Methylmercury Water Quality Criterion.  EPA published recommendations in 2001 for methylmercury ambient water quality criterion for the protection of people who eat fish and shellfish.  The recommended criteria are EPA’s first to be expressed as a fish and shellfish tissue value rather than as an ambient water common value.  As states and tribes develop methylmercury water quality standards, the 2009 guidance document offers technical advice on how to implement the new fish-based criteria.  At this time, the guidance document, which was issued in the final days of the Bush Administration, is under review by the Obama Administration.

Developments Related to Mercury in Food

Mercury Warnings

On January 27, 2009, the California Court of Appeals heard arguments in the case of People v. Tri-Union Seafoods, a tuna mercury warning case.  The case began with a 2004 lawsuit filed by the Attorney General of California against three major tuna companies: Tri-Union Seafoods LLC, maker of Chicken of the Sea; Del Monte Corp., maker of Starkist; and Bumble Bee Seafoods LLC, maker of Bumble Bee Tuna.  Based on Proposition 65, a voter-approved state law requiring warnings on products that contain chemicals that can cause reproductive harm or cancer, the California Attorney General sought injunctive and civil penalties for the companies’ alleged failure to warn consumers that their tuna products contain potentially harmful mercury compounds.  In response, the U.S. Food and Drug Administration (“FDA”) argued that its prior regulatory actions preempted the State’s lawsuit.  In 2006, the Superior Court of California agreed with FDA’s position and found, in this context, Proposition 65 was preempted by federal law.[4]  On appeal, the State argued that the state law supplements, not conflicts with, the federal advisory and that Proposition 65 “has its own set of rules.”  The companies, however, were of the opinion that “FDA has the power to and authority to regulate this issue.”  Having now heard the appellate arguments, the appeals court has until April 27, 2009 to issue a written ruling. 

A similar mercury warning case, Fellner v. Tri-Union Seafoods, is based on New Jersey product liability law.  In that case, a woman sued Tri-Union Seafoods for physical and emotional injuries resulting from mercury poisoning, based on the alleged failure of Tri-Union Seafoods to warn of the potential risks involved with consuming its products.  In 2007, a federal district court granted Tri-Union Seafoods’ motion to dismiss the case, holding that FDA’s regulatory scheme regarding mercury in fish preempts the woman’s state law claims.[5]  On August 19, 2008, the Court of Appeals for the Third Circuit reversed and remanded the district court’s judgment.  The appeals court found FDA’s 2004 advisory and other supporting documents  to be insufficient as federal law to preempt contrary state law.  According to the court, FDA had not promulgated a regulation, adopted a rule, or taken any action that could constitute a federal legal standard giving rise to conflict preemption.  As a result, on January 13, 2009, Tri-Union Seafoods petitioned the Supreme Court of the United States for a writ of certiorari to review the Third Circuit decision.[6]   

Resolution of both these cases may be influenced by the Supreme Court’s recent decision finding no preemption of state tort law by reason of FDA’s approval of drug labeling.[7]

Mercury in Fish

Consumption of fish is said to be the most significant source of mercury exposure to humans in the United States.  On January 21, 2009, FDA released two draft reports assessing the risks and benefits associated with the consumption of fish species.  The first report is a draft risk and benefit assessment, and the second is a companion document to the risk assessment summarizing published research on the beneficial effects of fish consumption.  In assessing the risks of mercury exposure against the benefits of eating fish, FDA concluded that consumption of fish species that are low in methylmercury has significantly greater probability of resulting in a net benefit, as measured by verbal neurodevelopment. 

FDA’s reports have been met with significant opposition, particularly from EPA.  As a part of an interagency review process, EPA commented on an earlier draft of the report by strongly criticizing the report as lacking in scientific, statistical, and methodological analysis.  The difference of opinions came as a surprise to many considering the joint-agency advisory issued by the two agencies in 2004 setting forth specific fish-consumption recommendations for groups at the highest risk of detrimental mercury exposure.  However, FDA’s Federal Register notice emphasizes that the reports are not a departure from, or modification of, the 2004 advisory.  Rather, they are “intended to add to the growing body of scientific literature investigating the . . . health impacts linked to consumption of fish.”  Currently, the draft is available for public comment, as well as secondary comments by earlier peer reviewers, including EPA.  Comments must be submitted by April 29, 2009.

Mercury in High Fructose Corn Syrup

Two reports released in January 2009 indicate the presence of mercury in high fructose corn syrup -- a product not commonly associated with the chemical.  Both reports are premised on the fact that, under some circumstances, high fructose corn syrup is made using mercury-grade caustic soda. 

The report by Dufault et al. that appeared in Environmental Health sampled high fructose syrup from three different manufacturers, analyzed them for total mercury, and found traces of mercury in 9 of 20 samples.  Recognizing that individuals are not likely to consume high fructose corn syrup directly, the Institute for Agriculture and Trade Policy sampled commercial products containing high fructose corn syrup and analyzed them for mercury.  Their results showed traces of mercury in popular brands, such as Quaker Oatmeal, Hershey’s Chocolate Syrup, Pop-Tarts, Smucker’s Strawberry Jelly, and Nutri-Grain Strawberry Cereal Bars.  The report does not claim to be a full-scale safety assessment, but rather evidence to suggest that the FDA should conduct its own investigation.

Policy recommendations proposed by the reports include the phasing out of mercury cell technology and banning the use of mercury-containing ingredients in foods and beverages.  Phasing out mercury cell technology could see progress under the Obama Administration.  In 2007, then-Senator Barack Obama introduced the “Missing Mercury in Manufacturing Monitoring and Mitigation Act” (S. 1818), aimed toward phasing out the use of mercury in, among other uses, the manufacture of chlorine and caustic soda by January 2012.  The House version of the bill was introduced in March 2008 and both bills were referred to Committee, where no further action occurred.

* * * *

For more information on the domestic developments of this topic, please contact Mark Duvall (mduvall@bdlaw.com).  For more information on the international developments of this topic, please contact Russ LaMotte (rlamotte@bdlaw.com).  Rea Harrison assisted in the preparation of this article.

For a printable PDF of this article, please click here.

Key documents referred to above can be obtained through the following links:


[1] N.H. Rev. Stat. Ann. § 149-M:53.

[2] Vt. Stat. Ann. tit. 10, § 7116.

[3] New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), cert. denied, 77 U.S.L.W. 3467 (U.S. Feb. 23, 2009) (No. 08-352).

[4] People v. Tri-Union Seafoods, 2006 WL 1544384 (Cal. Super. Ct. May 11, 2006), appeal docketed, No. A116792 (Cal. Ct. App. 1st Dist. Feb. 20, 2007).

[5] Fellner v. Tri-Union Seafoods, L.L.C., No. 06-cv-0688, 2007 U.S. Dist. LEXIS 1623 (D.N.J. Jan. 8, 2007).

[6] Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237 (3rd Cir. 2008), petition for cert. filed, (U.S. Jan. 13, 2009) (No. 08-889).

[7] Wyeth v. Levine, No. 06-1249 (U.S. Mar. 4, 2009), 2009 U.S. LEXIS 1774.