One by One, States Are Giving Consumers the Right to Know About Chemicals in Products

When evidence started to mount a few years ago around the adverse health effects of bisphenol A, an endocrine-disrupting chemical that’s used in many plastics, the marketplace took note. Companies found themselves under pressure to stop using BPA and label products as clear of a hazard that everyone, it seemed, wanted to avoid.

But with tens of thousands of chemicals in use today and little restriction in the US on which can be used in what products, BPA is but a speck on the tip of a chemical iceberg. Consumers might wish to avoid substances such as formaldehyde and arsenic (both known carcinogens) or phthalates (chemicals associated with cancer and endocrine disruption) in their clothing and other products, but the federal government rarely requires manufacturers to list everything that goes into clothing or other consumer goods outside of food. As a result, people are unaware if these or other substances are in their body lotion or their children’s pajamas.

The clandestine nature of these chemicals, however, is starting to change, as states enact legislation requiring greater transparency from companies about what comprises their products.

Washington state has taken the lead on this issue: The Children’s Safe Product Act, passed in 2008, now requires manufacturers of children’s products sold in the state to report into a state-managed, publicly accessible database if their products contain any of 66 designated chemicals of high concern to children.

Vermont passed a similar law last year that will go into effect in July 2016, and Oregon passed its own this past July. In Maine, manufacturers are required to report their use of BPA as well as nonylphenols – a group of widely used chemicals that act like hormones in humans, are highly toxic to aquatic organisms, and have been detected in lakes, streams and groundwater as well as breast milk, urine and blood. Although Maine’s list is much shorter than Washington’s and Vermont’s, it applies to many consumer product categories, not just children’s products.

These disclosure requirements are proving empowering to consumers by providing something they didn’t have before: knowledge.

These laws are not only catalyzing a new awareness of what’s in products, but also driving some companies to reformulate their products, due at least in part to a concern about reputation, not wanting to have to tell consumers they are using potentially harmful chemicals.

Forcing Transparency

These disclosure requirements (some of which are part of larger pieces of legislation) are proving empowering to consumers by providing something they didn’t have before: knowledge that children’s tableware contains formaldehyde, paint contains nonylphenols, dolls and soft toys contain BPA, and children’s tops contain phthalates. Although the laws primarily target children’s products because children are more vulnerable to the health effects of many chemicals than are adults, they offer a window into what chemicals we might expect to find in adult versions of the same products.

In some cases, manufacturers’ limited disclosure of chemicals in their products is not an issue of secrecy so much as a lack of information on their part because of the complexity – and, some argue, lack of accountability – in modern supply chains. Changing that, advocates say, is another key contribution of these requirements.

“From my perspective, [the disclosure laws’] greatest value is in creating the market transparency that forces companies to just think about it,” says Sarah Doll, national director for the consumer-focused policy advocacy network Safer States. “I know of a case where a large manufacturer – and for them Washington state is a tiny market – could not figure out what was in their products because the supply chain is so nontransparent. What the disclosure laws are doing is forcing some transparency in the supply chain that never existed before.”

“One of the big surprises for us is how much children’s clothing is being reported, and even bedding,” says Nancy Uding, research specialist for the nonprofit Washington Toxics Coalition, a research and consumer advocacy organization.

“When Maine required disclosure on nonylphenols in consumer products, that actually led to the discovery that it was in paint,” Doll says. “People were like, ‘Oh, gosh’ – which then laid the groundwork for market campaigns to talk to retailers of paint.”

The chemicals covered by these laws have a range of human health implications – some associated with cancer and other chronic diseases, others with impeding healthy development in children or interfering with the endocrine system. Environmental impacts include water and soil contamination along with altered behavior and gender expression in fish and other aquatic life.

Advocates like Uding see the disclosure requirements as a first step to reducing these impacts. “It shows us the scope of the problem. We didn’t even know [that] before we had this information,” she says.

Through the Washington database, Uding says, her organization has learned that screen-printed designs – when a T-shirt is decorated with ink that feels almost like rubber – often contain phthalates, and many plastic- and metal-based decorative elements are also turning up high levels of some chemicals of concern. “Those are something I would recommend avoiding. A lot of times they’re made with cheaper metals,” she says. “Usually we think of lead and cadmium. There’s been a lot of awareness built around those, but we’re seeing cheaper metals like cobalt, molybdenum.” The risks of exposure to these metals have not been fully identified, but include respiratory problems for cobalt and interference with the reproductive system for molybdenum.

Companies’ Response

The laws, though, are about more than raising consumer awareness. The data can also help guide future policy decisions.

“We’re collecting data in order to develop the next steps – be it recommendations for substitutions that we think should be made or opportunities for reducing the presence of certain chemicals through better manufacturing controls,” says Joshua Grice, research analyst with the Washington State Department of Ecology.

In the meantime, the disclosure requirements are already affecting the marketplace. Several major companies – retailers and manufacturers alike, from Target to Hasbro – are trying to source or reformulate products without some of the best known and most notorious chemicals on these lists. Toys”R”Us, for example, has urged its suppliers to reduce or eliminate chemicals that are “of potential concerns to human health and the environment,” citing legislation in Washington, Maine and California, as well as the European Union.

And as the use of certain chemicals declines, there is cause for optimism about the long-term implications for the environment. Some studies have shown that after industry phased out certain flame retardants, levels of the chemicals detected in wildlife also dropped.

Since the law went into effect in Washington, the database shows steep drop-offs in the use of chemicals by some major manufacturers – including, according to Uding’s analysis of reported data, children’s clothing brand Carter’s, toy and knick-knack company Greenbrier International, and fashion company Kate Spade & Company (under the name Fifth & Pacific, formerly its parent company). Graco, a popular manufacturer of strollers, car seats and other children’s products, for example, stopped reporting the use of tetrabromobisphenol A, a brominated flame retardant that some studies have associated with uterine cancer in rats, in five car seats. (The change implies that they stopped using this chemical, but the company did not respond to a request for confirmation.) Nike showed a drop-off in use of listed chemicals – including antimony, cobalt, ethylene glycol and methyl ethyl ketone (all among the most commonly reported chemicals overall) – since the Children’s Safe Product Act took effect.

Several companies – including Carter’s, Graco, Target, Nike, Staples and Walmart – were contacted for this story. Carter’s and Hasbro declined to comment (Hasbro citing “scheduling constraints”) on whether the state laws played any role in the companies’ decisions to reformulate products, Target and Graco did not respond, and Nike sent a statement saying it has its own restricted substance list that’s been publicly available since 2001. The list shows a roster of chemicals the company has voluntarily restricted, and cites legislation as the reason for many of the other restricted substances on the list.

A Walmart spokesperson responded in an email, “Walmart is committed to our belief that our customers shouldn’t have to choose between products that are sustainable and products they can afford.” And Roger McFadden, vice president and senior scientist at Staples, wrote, “When priority chemicals of concern in consumer products are identified and described in legislation, it often initiates supply chain dialogue followed by action within in the supply chain. Businesses want to be compliant. And progressive companies are looking for ways to get ahead of regulations.”

Consumer health advocates see a direct link between the string of laws passing and the timing of companies announcing major policy changes.

“I would argue that it wasn’t an accident that six months after Washington state released this information, that companies like Walmart and Target decided to screen their products for chemicals that were on the Washington list,” says Doll.

An Eye on Washington, DC

Other states, including California, New York and Minnesota, have passed or are considering laws to regulate chemicals on the market, but generally are focused more on regulating their use than on public disclosure. As more states pass these types of laws to improve the safety of chemicals used in the marketplace, advocates are also keeping an eye on Washington, DC, where lawmakers have been moving to update the decades-old Toxic Substances Control Act. In 1999, Henry Waxman, now-retired Congressional representative for California, sponsored a bill that would have required disclosure of chemicals in children’s products, but it never passed. More recently proposed legislation may overhaul how the federal government regulates the use of chemicals in the marketplace – and depending on the laws that pass, may hinder states’ abilities to do their own regulating. But they’re unlikely to affect the disclosure requirements.

“Whatever happens federally is going to be on a glacial pace,” Doll says. “There are 3,000 high-production chemicals out there, and [federal regulators] are going to do five a year, maybe, if they have the money. The states will still have the power around transparency.”