Employees can sue for unsafe work environment. At Jackson Lewis, we pride ourselves in providing advice to employers on how to prevent or minimize workplace related claims. Employers are obligated to warn consumers and employees of any risks involved with exposure to products or space exhibiting certain levels of chemicals. This article addresses the new TSCA rules that employers should look into to protect themselves from notice of violations and claims, not only from consumers, but from their own employees who might be exposed to chemicals.

On December 12, 2016, a final rule to implement the Formaldehyde Standards for Composite Wood Products Act, which added Title VI to the Toxic Substances Control Act (“TSCA”) was published in the Federal Register. The purpose of TSCA Title VI is to reduce exposure to formaldehyde emissions from certain wood products produced domestically or imported into the United States. The EPA worked with the California Air Resources Board (“CARB”) to help ensure the final national rule was consistent with California’s already existing requirements, including labelling requirements, for similar composite wood products, i.e. hardwood plywood, particleboard, and medium density fiberboard.

Included in TSCA Title VI were new labelling requirements for fabricators of finished goods that contain composite word products. These labelling requirements have a two-stage implementation. First, beginning on June 1, 2018, composite wood products sold, supplied, offered for sale, manufactured, or imported in the United States are required to be labeled as CARB ATCM Phase II or TSCA Title VI compliant. The practical impact of this first stage was minimal, in that products only needed to be labelled consistent with already existing California CARB labelling requirements in order to comply with TSCA Title VI.

However, on March 22, 2019, the second stage comes into effect. Beginning on this date, composite wood products must be labeled as TSCA Title VI compliant, and just having a label indicating California CARB II compliance is no longer sufficient.

In order to be compliant with the new TSCA Title VI labelling requirements, fabricators of finished goods that contain composite wood products must label every finished good they produce, or every box or bundle containing finished goods.

Finished goods that comply with TSCA Title VI and are labeled as TSCA Title VI compliant will be accepted as being compliant with California CARB’s standards, because the TSCA Title VI and CARB standards are identical. However, CARB recommends labeling panels and finished goods offered for sale in California as being compliant with both sets of regulations, because retailers and consumers are familiar with the CARB Phase II label already.

In order for a label to be both California CARB II and federal TSCA Title VI Compliant as of March 22, 2019, it is recommended that both the finished good and/or its box is labelled as follows:

1. The label may be applied as a stamp, tag, or sticker;
2. The label must include, in legible English text:
   1. Fabricator’s name;
   2. The date the finished good was produced (in month/year format);
   3. A statement that the finished goods are TSCA Title VI compliant, i.e. “TSCA Title VI Compliant” or similar;
   4. A marking to denote that the finished goods are CARB Phase II Compliant, i.e. “California 93120 Phase 2 Compliant for Formaldehyde” or similar;
   5. If all of the composite wood product used in the finished good was made with no-added formaldehyde-based resins, or ultra low-emitting formaldehyde resins it shall be labelled as such, e.g. “Produced with all NAF-based products” or “Produced with all ULEF-based products.”

The regulations specify the minimum information required for a label, but do not specify the format, color, size, or font for the label. These choices are left to the fabricator of finished goods to allow flexibility to meet the needs of individual companies. The required information may be on a separate label or incorporated into other existing labels. Individual companies may include any additional information they deem necessary. The label should be in a location that is easily accessible.

Importers, distributors, and retailers must leave intact labels on finished goods, including component parts sold separately to end users. However, they do not have any additional labelling requirements, as long as they have not modified the finished goods.