The Mind the Store Initiative — Moving Beyond Existing Regulatory Schemes

The Mind the Store Initiative — Moving Beyond Existing Regulatory Schemes

The Safer Chemicals/Healthy Families Coalition (which includes Earthjustice, Environmental Defense Fund, Greenpeace, League of Conservation Voters, Natural Resources Defense Council, Sierra Club, US Public Interest Research Group, several environmental justice groups, patient groups, nurses organizations, the United Auto Workers, and the United Steelworkers, among others) is urging large retail stores to “wor[k] with suppliers to replace the Hazardous 100+ chemicals [selected by the Safer Chemicals/Healthy Families group] with safer alternatives” as part of what it calls the “Mind the Store” Initiative (see The “Mind the Store” list of 100+ chemicals is derived from existing governmental lists of chemicals that present a hazard (i.e., there is data showing a statistically significant increase in the response to exposure to the substance at some level (usually very high levels) in at least one study (typically a study on rats or mice), when interpreted using preventive regulatory guidance and policies).

On September 12, 2013, a major retailer announced that it will disclose the chemicals used in its products and start phasing out the use of and/or substituting safer alternatives for as many as 10 priority chemicals starting next year. The specific ten priority chemical have not yet been named, but they are a subset of the “Mind the Store list of 100+ chemicals). Other companies, most notably in the consumer athletic sportsware market are considering chemicals in products programs, although it is not known at this time whether they will follow the same steps as the retailer described above.

Of most concern is that the Mind-the-Store list of 100+ chemicals, on its face, requires substitution based on the mere presence of a chemical. The American Chemistry Council and others have criticized this approach as lacking a sound scientific foundation since it does not consider the product’s use, the potential level of chemical exposure, the level of risk, feasibility, functionality, cost or unintended consequences in the decision to substitute a chemical in a product.

The likely negative effect of this approach is underscored by the presence on the “Mind the Store” list of antimony trioxide, arsenic and arsenic compounds, beryllium and beryllium compounds, cadmium and cadmium compounds, chromium and chromium compounds, lead and lead compounds, mercury and mercury compounds, and nickel and nickel compounds. These metals are in products, at varying concentrations, due to their presence in raw materials. Thus, adoption of this policy could adversely affect product functionality and would significantly disrupt the product supply chain regardless of the quantitative risk from use of the product. As a result, companies up and down the supply chain will see increased regulatory and/or product substitution costs and these costs most certainly will be passed on to consumers with no guarantee of any significant risk reduction.

Although there are a number of EPA, State, and private sector sustainability projects and evolving policies, there is no widely accepted or legally binding regulatory methodology for determining when to substitute a chemical in a product. However, the mere presence trigger is inconsistent even with the approach adopted in the final California Safer Consumer Product regulations, as well as the long-standing EPA Metals Risk Assessment Framework, and more generally the long-accepted U.S. risk assessment/management process.

These concerns do not prevent companies from working together to reduce the presence of “toxic” chemicals in products. Sustainability has been and will continue to be an important tool for companies to address triple bottom-line issues. However, the reason that there are checks and balances in the U.S. legal system is to avoid decisions based on erroneous, outdated or misinterpreted information. Many retailers have provided some opportunity for feedback, but given the significant economic consequences that may result from a requirement to substitute a chemical, caution, transparency, and an opportunity for suppliers to work cooperatively with retailers should be built into any chemical substitution program.

William J. Walsh, Esq.

Read more at from Pepper Hamilton LLP's Sustainability, CleanTech and Climate Change Team.

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