The Latest in CPG Regulations: June 2023
Let’s face it – CPG regulations can be convoluted. They are often (necessarily) filled with complexity and nuance that don’t make it easy to decipher how exactly they may affect you and the products you sell.
We know how important it is for you to stay up-to-date with anything that could impact your business. That's why we're here to fill you in on some interesting updates that we're keeping a close eye on. These recent updates cover four main areas: DOT PHMSA International Harmonization (HM-215Q), Vermont HB 67, and Washington SB 5144, and MOCRA. So, let's dive in.
DOT PHMSA International Harmonization (HM-215Q)
Get ready for some positive changes: The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) has proposed a rule (HM-215Q) that will make your life easier. The new rule was proposed in May, and is likely to be finalized by EOY. Here's what you need to know:
- Button cell batteries: Good news. You'll still need to test button cell batteries installed in equipment, but you won't have to worry about sharing the Test Summary (TS) report anymore. It's a small change, but it means less paperwork and more streamlined compliance for you.
- Lithium battery markings: Say goodbye to the phone number requirement on the lithium battery mark. This simplification will make labeling lithium batteries easier and removes confusion from the supply chain.
- PSN and ID8000 updates: There are a few minor updates to the Proper Shipping Name (PSN) and ID8000. These updates will help you properly identify and ship hazardous materials. It's essential to stay informed about these changes to ensure you're on the right track when it comes to shipping regulations.
Vermont HB 67
Vermont has some interesting legislation in the works, and it's something you'll want to pay attention to. The legislation was delivered on May 12th and comes with 2025 implementation dates. Here's the lowdown:
- Funding the HHW program: The new law would require manufacturers and brands to step up and fund the Household Hazardous Waste (HHW) program in Vermont.
- Increased responsibility on the consumer for haz-waste vs. non haz-waste: This change could mean that the distinction between Haz-waste and Non-haz-waste would be as important to consumers, waste management entities, recyclers, and brands as it is to Retailers.
- Waste handling fees and brand responsibility: The legislation allows for waste handling fees, which will be redistributed to brands, and is typically based on their market share. Orphaned products (products without a brand owner) would be collectively covered by participating brands.
- Exemptions and special considerations: The law includes exemptions for certain products like pesticides, cosmetics, drugs, certain paints, and already covered electronics and batteries. Make sure you're aware of these exemptions to avoid any compliance headaches.
Washington SB 5144
Washington has also got some new regulations coming your way. The legislation was signed on May 11th by the governor, with 2027 implementation dates. Here's the scoop:
- Battery stewardship plan: If you are a “producer”of covered batteries or products containing them, you'll need to participate in a state-approved battery stewardship plan. It's all about responsible management and ensuring proper recycling and disposal.
- Who's a producer? The law broadly defines a producer as battery manufacturers, retail brands, third-party brands, licensees of a brand, importers, or anyone selling the product in the state. It's an inclusive, hierarchical definition to ensure accountability throughout the battery supply chain.
- Battery markings and compliance: although coming into force at a later date, “producers” shall supply, and retailers must collect, a certification that the covered batteries have the required "producer" marking along with the battery chemistry. Lawmakers are placing primary responsibility on the producer, but also require due diligence from retailers.
FDA's Modernization of Cosmetics Regulation Act of 2022
Although published at the end of 2022, there’s significant regulatory change coming that impacts the cosmetics industry:
- FDA regulations for fragrance allergen rules: The FDA is mandated to promulgate regulations for allergen rules within 18 months of December 29, 2023. Keep an eye out for these regulations to ensure your products comply with the new requirements.
- Fragrance allergen ingredient disclosure: Once the list of fragrance allergens is finalized, brands and manufacturers must disclose these allergens on the cosmetic product label . This means you may see changes in product labeling and information provided to customers.
- Does label disclosure equal FDA disclosure? While label disclosure is an important part of complying with FDA regulations, producers of cosmetic products must also register with the FDA and submit a Cosmetic Product Listing, which includes “...a list of ingredients in the cosmetic product, including any fragrances, flavors, or colors, with each ingredient identified by the name, as required under section 701.3 of title 21, Code of Federal Regulations (or any successor regulations), or by the common or usual name of the ingredient”. Will this disclosure of information to the FDA be the same information required on the product label? The answer will impact the logistics of information transparency in the supply chain.
Staying informed about regulatory updates doesn't have to be overwhelming. These updates are here to make your life easier. So stay in the loop, adapt your processes as needed, and reach out to our team of experts with questions at any time, and check back next month for more updates.
100,000 data-driven retail pickups
Waste is a byproduct of retail. It can be minimized but it’s impossible to avoid. When handled correctly and sustainably by recycling, donating, and directing to the correct waste streams, retailers can achieve their critical ESG goals.But how can retailers achieve this efficiently and at scale? Data and technology are the key to handling waste responsibly and ensuring sustainability is front and centerRecently, US Ecology Technician Bryan Thompson wrapped up his weekly route with a waste pickup at a major retailer in Lake Nona, Florida. Unbeknownst to him, the twelve minutes spent on-site would achieve a significant milestone.Bryan’s stop was the 100,000th service performed by US Ecology using Smarter Sorting's Back of Store System, which syncs with hardware in US Ecology trucks. Launched in July of 2020, this data driven software solution streamlines hazardous waste pickups while ensuring safety and compliance throughout the process. When paired with Smarter Sorting’s Back of Store System for Retailers, data shared between the two systems generates significant time savings for waste diversion as well as the safe and accurate disposal or recycling of consumer goods—resulting in savings passed on to retailers and consumer goods brands.US Ecology CEO Jeff Feeler praised the Smarter Sorting solution during a recent earnings call. “Our investment in AI software has generated a 30% increase in stops per day in our retail program with the installation of this technology in our fleet. We believe further efficiencies will be realized as retail customers adopt these technologies, including a new sorting process in the back of the retail stores.”Bryan Thompson added: “The system is both simple and efficient, and provides access to a dedicated support team if needed. It reduces the time it takes to complete a pickup, and ensures more products are sustainably recycled or donated, rather than disposed of, than ever before,”Smarter Sorting would like to congratulate Bryan for this historic milestone. We look forward to helping all members of the US Ecology fleet know more and do better for the next 100,000 stops—and beyond.
A solid definition of waste forms
Spoiler Alert: It was dry when I put it in the freezer.
The light was low. The time was college. It seemed to be a good idea at the time. All official records have been scrubbed. The names have been omitted or changed for obvious reasons.
I pulled the jumbo, tie-dyed sponge from the freezer and handed it to my friend.
“Is this wet or dry?” I asked.
He took it from me despite a moment of hesitation. He turned it over in his hands, squeezing it lightly with his fingers. He squeezed it harder with his hands, using fingers and palms together like he was playing an accordion, his eyes locked on the changing patterns as the tie-dyed sponge expanded and contracted.
“Wet or dry?” I asked again.
“It’s definitely wet,” he snapped back, shifting his gaze to me – still squeezing the sponge in and out. His face changed. “Well,” he paused and resumed looking at it, ever squeezing… “Maybe not… I… I don’t know.”
Over the next 5-10 minutes he and three other people passed the sponge around, back and forth, and were unable to come to a consensus (as individuals or as a group) on whether the sponge was wet or dry.
A simple question. Wet or dry is a basic sensation. So, how did it become so difficult for a group of college-educated people to decide?
Fast forward to the year 2020. My sponge experiment is eerily similar to the situations retailers and waste haulers find themselves in when determining one of the most basic consumer product attributes – Form. Typical forms include solids, liquids, and gases. There are also other forms that are relevant when hauling waste, e.g., aerosols and liquids absorbed in solids (the latter plays a pivotal role in the unfolding story).
Just like my bygone experiment, the determination of liquid or solid…
1. Should be apparent to anyone, in theory
2. Can be more complicated than you think
3. Can be affected by temperature
4. May leave smart people unsure about their choices
5. Is often made without data from the manufacturer
Right off the bat you may say, “You’re cheating! The sponge is a solid. The water it soaked up is the liquid!” Very astute of you. But in the world of waste, it’s not that simple. Form determination at its core is about “free liquid.” So, if I squeeze the sponge, and water hits the floor, is that free liquid? Is it only free after I liberate it? What about gel caps, or just plain ‘ole gel??
The essence of the solid form is that there is no free liquid. In the world of regulated goods, there are plenty of easily identifiable solids: Chlorine pucks, powdered laundry detergents, rat poison pellets, and fertilizer granules, to name a few. Seems simple enough. What about paste? What about hair gel? It might surprise you to learn that all three can be considered solids. This matters in some very practical ways, especially related to packing, storing, and transporting.
First, containers are only tested and approved to hold and transport certain substances. Think about a 55-gallon steel drum. While it may seem logical that it can hold liquids, logic is not always synonymous with regulatory approval. It must be evaluated for the maximum specific gravity of liquids it can contain and the maximum hydrostatic pressure it can withstand. These tests determine if it can safely hold and transport approved free liquids.
With a standard UN-rated steel drum, we could pour used oil or a water/gasoline mixture right inside with no worry about leaks or spills. But, if a container is rated only for solids, then it’s not safe or compliant to pack, store or transport liquids inside. A box is great for collecting and storing batteries. And many waste haulers transport them that way. But you couldn’t pour oil in a box unless you were just itching for a mess and a lawsuit.
A second consideration is the segregation of liquids and solids. If you’ve ever done pool maintenance or encountered a bucket of chlorine pucks that got wet, you know that you definitely want to keep them dry. While most consumer products are not inherently dangerous, there are many products that only “become” dangerous after moisture is added.
Dry items do not have a pH. So a bag of Portland cement is not dangerous or regulated. However, adding water produces a substance that is highly alkaline. Some solids react violently with water. The deadly 2015 Tianjin blast may have been triggered by firefighters using water to put out a small fire in a container of calcium carbide. Bottom line, it’s important to keep dry things dry.
Ok, so there are wrinkles with regard to waste regulations. However, the laws governing solids often apply to non-regulated waste as well. Many large retailers use huge trash compactors to manage their on-site waste. Just like the old cabinet unit your aunt had back in the day, the compactor smashes the crap out of whatever is inside, allowing more waste to be put into the container before final disposal. I think it’s fairly obvious why you wouldn’t want to put something like a propane tank in an industrial strength compactor, but what about liquids? Does it matter?
Yes it does. The waste hauler for regular “landfill” trash requires that no free liquids be included in the compactor. For some retailers, this is defined as “anything that would produce liquid if you put it in the compactor.” But really, this doesn’t hold up. If I smash a vitamin E capsule (a liquid contained in a solid) with my foot, what happens? A little liquid spurts out and leaves a mess on the floor and my shoe. Same thing happens if I squeeze several wet wipes (a liquid absorbed in a solid).
The cost is very real. The “liquid” material is hauled away by a regulated waste hauler, while the “solid” material is hauled away by the regular trash hauler. Oddly, they both end up in the same place, but incur vastly different costs in the process.
Ok, maybe we’re getting too in the weeds here. Let’s go to the other side of the coin: Liquids. You probably know them well – household cleaners, shampoos and body washes, used oil, hydrogen peroxide solutions – the list could go on and on. Edge cases are bound to come up as we’ve seen, so let’s examine applicable definitions on the subject.
For the U.S. Department of Transportation, a material is defined as liquid if it has a melting point lower than 68℉. Ok great. But, it’s 104℉ in Austin, TX today. So whether or not a substance is solid at 68℉ doesn’t really matter in my world for about 10 months of the year.
Don’t worry. If the information is not available, you can conduct an ASTM D4359 Test. That’s American Society for Testing and Materials, for those of you keeping score. “Ah yes, the ASTM D4359… I can’t believe I forgot about that test. Let me pull out my ASTM D4359 meter and….” I think you see the problem. This is already frustrating. Let’s put this last part aside for a moment. We’ll come back to the D4359 test in a bit.
The Resource Conservation and Recovery Act (RCRA) is even better. They say that you should put the substance in question in a conical piece of equipment and wait 5 minutes. If you see a drop of liquid, then the substance contains free liquid. And remember, if it contains free liquid, the whole thing is liquid. I’m not kidding you, THIS is the “science” behind the regulations. “Morning John… Here’s the cone you use to determine those solid/liquid edge cases.” Really? Next!
The National Fire Protection Association is my personal favorite. They say that a liquid is something that has a fluidity greater than 300 penetration asphalt. What? Those appear to be words, grouped together to convey a thought. But they mean nothing to me. There is some limited explanation. They say to use a test from the American Society for Testing and Materials called the Standard Test Method for Penetration of Bituminous Materials. And yes, you do in fact need a needle for this one.
Again, this doesn’t help your average waste technician or retail worker. They do say another test can be used, however… The old ASTM D4359 test! Now we are getting somewhere. We finally have two regulatory bodies that agree on how to define a liquid!
Don’t get too excited. The ASTM D4359 test boils down to the following – Heating the substance to 100℉ and then inverting its container. If there is no detectable immediate flow of the substance, then the substance is solid. Otherwise it is liquid. Well, at least the temperature consideration seems more grounded in real life. Of course, to have the results of this test, the manufacturer would have to do the test and declare the results. Sounds like something that might be included on a product Safety Data Sheet (SDS)…
Safety Data Sheets
Wait, of course! That’s it! Don’t they have to tell us on the SDS? Ahhhh great insight. But it’s a little more challenging than that. The average retail worker or even hazardous waste technician will not have immediate access to an SDS.
At Smarter Sorting, we have solved this problem by collecting SDSs for over one million consumer products. Our partners have one-touch access to millions of chemical product SDSs, all from a simple product barcode scan. Those SDSs have nearly 10,000 distinct values for product form. Here are some of my favorites:
- “Liquid to cream”
- “Aerosol. Liquefied gas.”
- “Sticks of various colors.”
- “Paste / Gel, Solid containing liquid”
- “Polypropylene wiper substrate with a wet solution”
- “Ivory White with pearls Liquid”
- “Clear liquid saturating a towelette”
- “Viscous cream, free of foreign matter”
- “Solid, Red match head, woody matchstick”
Congratulations! You have the SDS and thousands of distinct values for product form. Problem solved, right? Well, maybe not quite. Even if you have the SDS for reference, the answer may not be as clear as we’d like. Regulations still exist in a strange place where a product can be declared as something that doesn’t necessarily reflect what it is ‘in the livid world.’ The following cosmetic product SDS demonstrates this discrepancy well:
As you can see, this liquid eyeliner product is ironically declared as a solid. However, the Melting Point is described as “Softens at 104°F-158°F (40℃-70℃).” It’s unclear why there is such a large range for the softening, but 104°F is well within the range of temperatures one would experience in the back of a waste hauling truck.
So how do we solve this?
The Smarter Sorting Resolution
“Is this wet or dry?” Have no fear! Every product registered in the Smarter Sorting Classification Portal is assigned the correct form. If the manufacturer is unsure of the form type, we determine the truth according to applicable regulations. We resolve that information to retailers and waste haulers with simple instructions on how to handle the item. No more confusion, and no more guessing with those edge cases. A solid definition is here to stay.