Update and Alert | Implementing State Regulation of Children’s Products Behind Schedule; Vermont Manufacturers Left in Limbo; Manufacturers Should Check if Covered

As you might know, Vermont enacted expansive requirements on manufacturers of products made or marketed for children in 2014.  The new law, referred to as Act 188, imposes reporting (and thereby testing) requirements for 66 chemicals used in products or present as contaminants, provides for publication of product information, and provides for potential addition of chemicals covered and also regulation (including bans) of specific products.

It remains uncertain whether all Vermont manufacturers covered by this law are aware of its application to their products, and all Vermont manufacturers are strongly encouraged to review covered products and chemicals (not least because there might be legislative action this year or next to expand the scope of the law to more products — click here for related post).

Problems with Initial Reporting Deadline

Act 188 provided a default deadline for initial reports of July 1, 2016.  Although authorized to establish a phased-in deadline, the Department of Health refused to alter this deadline in its initial implementation rule proposed last year and approved in November.  However, the online registration system has yet to be established, leaving manufacturers in a difficult compliance position as discussed further below.  AIV had worked with a coalition of manufacturing parties to advocate for a later and phased in reporting schedule.

Four months after the Department of Health was supposed to have an online reporting system set up for manufacturers to comply with reporting requirements under Act 188, regulating products marketed for or to children and containing certain chemicals, and only three months away from what is technically the deadline for such reporting, the system has not yet been made available.

In December, the Department notified certain stakeholders that the system would not be ready January 1, possibly not until “the spring”, and that the Department would ignore the July 1 deadline for manufacturers to comply, instead granting them six months from the date that the system is made available.

AIV is concerned that the Department is putting manufacturers in the position of being in violation of statutes and regulations through no fault of their own, and being forced to rely on simple discretion not to be penalized.  AIV and our allies will be seeking to have an extension of initial reporting deadlines made more formal, and to address concerns that the Department has not taken sufficient measures to inform all covered Vermont manufacturers of their obligations under the statutes and regulations, or of the current “delay” in having to comply.  Vermont manufacturers interested in more information and options for engagement that they can consider should contact us at info@aivt.org.

Problems with Compliance Guidance Document

In addition to problems with reporting deadlines and reporting mechanisms, there are a number of issues with a draft compliance guidance document released for comment in February.  AIV and other manufacturing parties submitted comments on the guidance document March 15, but it remains unknown what changes might be made.

To review the draft guidance document and our coalition comments, email info@aivt.org.  Although the formal comment period has passed, Vermont manufacturers are encouraged to consider contacting the Department in support of our comments and to watch for further action alerts as might be warranted.

Other Outstanding Concerns and Questions

Also, in addition to issues with reporting and guidance, there are a number of other implementation and compliance questions and concerns that AIV and our coalition allies have pressed the Department to address and explain.  Issues raised, information requested, and questions asked include:

  • An update on the status of the contracted work being done to develop the reporting mechanism and potentially other related implementation and administration services and any other contract negotiations for or internal Department development of programs and processes for the filing of reports and the public availability of related data.
  • Documentation and related information related to how the Department and any contractors intend manufacturers to submit required reports, how these reports will be processed and data stored and made public, and when manufacturers will be able to begin making filings.
  • A clear explanation of the authority under which the Department intends to waive the initial reporting deadline or, if a rule revision is required to move the July 1 deadline, when such a revision will be proposed.
  • How many reporting manufacturers (both in and outside Vermont), how many reports, and how many individual product data entries is the Department preparing to handle through its contractor(s) and internal staff?
  • What specifically has the Department done and what does it plan to do to identify and notify manufacturers, both in and outside Vermont, of their reporting obligations under Act 188?  How many Vermont manufacturers has the Department identified and/or communicated with regarding the status of implementation?
  • What processing and compliance/enforcement contingencies is the Department preparing should there be further technical or other delays in the Department’s ability to receive and/or process manufacturer reports?
  • What processing and compliance/enforcement contingencies is the Department preparing should manufacturers acting in good faith find it beyond their technical or financial capabilities to comply with the rule’s initial reporting requirements, especially small and sole proprietor manufacturers?
  • How will the Department comply with the disclaimer that is mandated in 18 VSA § 1775(i)?
  • What guidance and supporting information, and related outreach and education efforts, is the Department preparing for Vermont retailers so that they will understand how the law is to be implemented and enforced for the covered products they might carry?

The Department last Friday acknowledged the requests above but provided little substantive answers, and AIV and our allies will be pressing them further.  Vermont manufacturers interested in these or other issues related to implementation and compliance with Act 188 are encouraged to contact us at info@aivt.org.