EPA may require companies to know all the chemicals in products they make or sell


In a dramatic announcement last week, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.

EPA has traditionally declined to extend most of its chemical regulations to finished goods, which are known as “articles” under the Toxic Substances Control Act (TSCA), on the grounds it would be enormously difficult for importers of complex consumer products to determine the chemical identity of each chemical substance in these products. Industry stakeholders have generally supported this approach and have long taken the position that supply chains are too complex to expect finished product manufacturers to be aware of all chemicals in those products.

But Michal Freedhoff, head of the EPA chemicals program, signaled last week that EPA may be shifting course to a new approach for articles. In a bold keynote address at the annual meeting of the Product Stewardship Society, Freedhoff noted that EPA unquestionably has the authority under TSCA to regulate chemicals in manufactured goods and finished products—even if it has not often exercised that authority in the past. She said, “It’s simply not tenable for industry to complain about a rule regulating articles because they don’t know what’s in them.” Freedhoff further emphasized that “companies are already required to know what is in their products in order to comply with European Union regulations, which require reporting for products which contain chemicals identified as a “substance of very high concern.”

While Freedhoff did not announce any new regulatory actions, this potential new direction for EPA has important—and very serious—implications for nearly every company involved in manufacturing, importing, distributing, or selling finished good

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~sNational Law Review, 4 October 2021