CONSUMER PRODUCTS AND RETAIL E-SSENTIALS

USA Oregon toxic-free kids act HAS reached final implementation phase

MARCH 2021 - TOYS AND CHILDREN'S PRODUCTS

On 1 March 2021, the State of Oregon has published its rules for the final implementation phase (Phase 3) of the Toxic-Free Kids Act¹. By 1 January 2022, manufacturers are required to remove or make a substitution if High Priority Chemicals of Concern for Children’s Health (HPCCCHs) are used in products or seek a waiver. 

In 2015, the State of Oregon enacted the Toxic-free Kids Act (the Act) which authorises the Oregon Health Authority (OHA) to establish and maintain a list of HPCCCHs² and establish rules governing what manufacturers must do to comply with the Act. The rules and rulemaking processes were established over Phases 1 to 3. Phase 1 and Phase 2 established the list of HPCCCHs including the Practical Quantification Limits (PQLs), detailed manufacturer reporting requirements as well as the priority order of those entities responsible for providing product notifications.

Starting from 1 January 2018, a manufacturer of children’s products sold or offered for sale in this state must provide biennial notice to the Oregon Health Authority if the children’s products contain a high priority chemical presence as a contaminant of 100 parts per million or above PQL for intentionally added chemicals.

Phase 3 established the rules to address the requirements of Oregon Revised Statutes (ORS) 431A.260. This has taken effect from 1 March 2021. The manufacturer of three product categories must remove the HPCCCHs or substitute HPCCCH with an alternative, or seek a waiver approved by the OHA starting from 1 January 2022. This differs from other US States (e.g. Washington and Vermont) which requires reporting. However, Phase 3 did not add or remove any HPCCCHs. Currently, there are 68 HPCCCHs on the list. 

• products for children under 3 years old;
• mouthable items per ORS 431A³.253(8) that refers to a children’s product or any part of a children’s product, that has an intended use of the product or any part of the product includes being placed in the mouth for any purpose;
• children’s cosmetics

If the manufacturer of the above three product categories substitutes an HPCCCH with an alternative chemical, according to ORS 431A.263, it must submit a hazard assessment to the OHA demonstrating that the new chemical is less hazardous than the substituted one.

If the manufacturer of the above three product categories applies for a waiver, according to ORS 431A.265, it must submit:

• an alternatives assessment demonstrating that removal of the HPCCCH used in children’s products is not financially or technically feasible; or

• a quantitative exposure assessment demonstrating that the HPCCCH used in children’s products is not reasonably anticipated to result in exposure.

The corresponding Oregon Administrative Rules (OARs) are also newly established to help the manufacturers to comply with the requirements. The complete rules for Toxic-Free Kids Act can be accessed at OAR 333-016, starting at 333-016-2001.

[1]  Toxic Free Kids Act: Rules and Implementation

[2]  Current HPCCCH List

[3]  ORS 431A