Minnesota recently became the first U.S. state to ban the sale of consumer products containing any amounts of bisphenol-A, a chemical that is widely used in the production of epoxy resins and polycarbonate plastics and the main ingredient in hard polycarbonate plastics. The Minnesota ban is limited to empty bottles and cups to be filled with food or liquid that are designed or intended by manufacturers to be used by children under three years of age. Manufacturers and wholesalers will be prohibited from selling or offering for sale subject merchandise from 1 January 2010, and the ban will be broadened to covered products sold or offered to sale by retailers from 1 January 2011. The Minnesota BPA ban is narrower in scope than a similar measure under consideration in the state of Washington, which, if enacted in its current form, would also prohibit the sale of sports water bottles containing BPA.
Minnesota's BPA ban is significant not only because it places a significant compliance burden on manufacturers and importers while opening the door for other states to enact similar or even tougher prohibitions on this substance, but also because legislative efforts by U.S. states to address product safety and environmental issues have in many instances paved the way for comparable action at the federal level. The serious consideration and approval of state-wide regulations at the federal level generally requires any such regulations to be embraced by a critical mass of states, which is something that may not even occur or could take several years to materialise. The ban on phthalates included in the CPSIA is a notable example of a prohibition that trickled up unusually quickly from the state and city level to the federal level (San Francisco was the first U.S. jurisdiction to enact a ban on products containing phthalates in July 2006, California approved a state-wide ban in October 2007 and Congress enacted the CPSIA in August 2008). Like phthalates, there is growing concern that BPA could cause adverse health effects on humans, particularly developmental problems of the endocrine system in infants and young children. For that reason, the possibility that legislative action in other states and possibly the U.S. Congress could come relatively quickly cannot be dismissed.
Minnesota also recently followed in the footsteps of such states as California, Maine and Washington by enacting a comprehensive regulatory framework on chemicals. Essentially, Minnesota regulators are required to generate a list of chemicals of high concern by 1 July 2010 and a list of priority chemicals by 1 February 2011. Chemicals to be considered for inclusion in the "high concern" list include those listed as a suspected carcinogen or reproductive or developmental toxicant or as being persistent, bio-accumulative and toxic or very persistent and very bio-accumulative by a state, federal or international agency. The Minnesota Pollution Control Agency is also required to provide a report to the state legislature by 15 December 2010 with a review of mechanisms used by other states, the federal government and other countries to reduce and phase out the use of priority chemicals in children's products and promote the use of safer alternatives. The report must include recommendations to promote and provide incentives for product design that use principles of green chemistry and life-cycle analysis.
Minnesota is not the only state that has approved significant product safety legislation in recent weeks. Vermont is set to become the third state to ban the use of decabromodiphenyl ether (deca-PBDEs) in certain consumer products, following the lead of Maine and Washington. The ban was approved by the Vermont legislature in early May and is expected to be signed into law by the governor shortly. Under this legislation, Vermont will prohibit the sale or distribution of (1) all products containing penta- or octa-PBDEs, effective from 1 July 2010; (2) mattresses, mattress pads and upholstered furniture containing deca-PBDEs, effective from 1 July 2010 (except for inventory purchased prior to 1 July 2009); and (3) televisions or computers with a plastic housing containing deca-PBDEs, effective from 1 July 2012 (except for inventory purchased prior to 1 July 2009). These restrictions will not apply to the sale or resale of used products or to motor vehicles or parts for use on motor vehicles.
PBDEs have been used extensively as flame retardants in a range of household products, including electronics, upholstery and furniture. Health experts and regulators in several states have argued that studies on animals show that PBDEs can impact the developing brain, affecting behaviour and learning after birth and into adulthood. Penta- and octa-PBDEs are believed by many to be the most hazardous types of PBDEs, while deca-PBDEs are regarded as much less hazardous but are used more widely than either penta- or octa-PBDEs. People are typically exposed to these chemicals through house dust, indoor air and food, and the level of human exposure to PBDEs has been increasing at a rapid pace in recent years, particularly in North America.
