EPA Requires Manufacturers and Importers of Cadmium-Containing Products to Share Health and Safety Reports

On December 3, 2012, the U.S. Environmental Protection Agency (EPA) published in the Federal Register (77 Fed. Reg. 71561) a final Toxic Substances Control Act (TSCA) rule that will extend reporting requirements for cadmium or cadmium compounds to those who manufacture or import these substances or products (i.e. “articles”). The final rule does not include a threshold or de minimus, so electronic products will still be subject to the rule even if the level of cadmium or cadmium compounds present in articles meets EU RoHS requirements.

The rule, which was not previously proposed for review or comment, indicates the agency’s continued effort to regulate consumer products on the basis of chemical content.  The EPA relied on a procedural mechanism to issue a final rule without notice nor opportunity for public comment. The rule is expected to affect makers and importers of consumer products including electronics.

The rule would require manufacturers and importers to report “unpublished health and safety studies” to the EPA when the substances have been or are reasonably likely to be incorporated into consumer products. The EPA interprets the definition of health and safety studies to include studies showing “measurable content of cadmium or cadmium compounds in consumer products.” The preamble to the rule includes among the examples of health and safety studies to be provided to the EPA, “data conducted in compliance with ASTM certification standards.” Thus, it may be the case that manufacturers and importers that obtain third-party laboratory test reports to show compliance with ASTM or UL standards could be required to provide the EPA any such test reports that show “any measurable content of cadmium or cadmium compounds.”

Although the preamble to the rule does not list manufacturers and importers of complex consumer products, such as cordless power tools or electronic devices with an on-board cadmium-containing battery, it is likely that these manufacturers will be expected to have an awareness of the chemical content of all of their components and whether there might be available health and safety data concerning the presence of cadmium.

IPC and a number of other manufacturers are planning to write to the EPA asking the agency to reconsider the final rule and clarify the following questions:

  • What sectors are affected by the rule?
  • What is the scope of the term “consumer product”?
  • What kinds of documents are considered to be health and safety studies covered by the final rule?

The EPA also has announced that it will publish a proposed rule extending the scope of these reporting requirements to entities that are processors and distributors of cadmium compounds and articles containing cadmium compounds. If finalized, this rule would further expand the list of affected entities to include any company assembling or distributing cadmium containing consumer electronics.

The new reporting requirements are extremely broad. They represent the EPA’s second recent attempt to extend its regulatory authority under TSCA to include not just chemicals, but also the products containing regulated chemicals, in this case cadmium or cadmium compounds. In July 2012, IPC filed comments opposing the EPA’s proposed TSCA regulation of products containing polybrominated diphenyl ethers (PBDE).

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  1. […] The rule would have required manufacturers and importers to report unpublished health and safety studies to the EPA when the substances have been or are reasonably likely to be incorporated into consumer products. Since the rule did not include a threshold or de minimus, electronic products would have been subject to the rule even if the level of cadmium or cadmium compounds present in articles meets EU RoHS requirements. More information on the rule can be found at https://blog.ipc.org/2012/12/10/u-s-epa-finalizes-toxic-substances-control-act-tsca-reporting-require… […]

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