Industrials Regulatory News and Trends

Welcome to Industrials Regulatory News and Trends. In this regular bulletin, DLA Piper lawyers provide concise updates on key developments in the industrials sector to help you navigate the ever-changing business, legal and regulatory landscape.

Manufacturers take note: reporting deadline for PFAS in products – January 1, 2023. Under a first-of-its-kind statute, the Maine Department of Environmental Protection (DEP) is requiring product manufacturers to notify the state of all products, with minimal exceptions, offered for sale in the State that contain “intentionally added PFAS” by January 1, 2023. Learn more in our alert, Manufacturers face January 2023 Maine deadline to report PFAS in products, but extensions may be available.

Trade group writes to oppose state’s restrictions on flame retardants. Washington State’s Toxic Pollution Law, which regulates classes of chemicals in consumer products, is being implemented by the state Department of Ecology in a program called Safer Products for Washington. On December 9, the American Chemistry Council’s North American Flame Retardant Alliance expressed strong opposition to the state’s intent to restrict the use of certain flame retardants via that program. “The Department of Ecology’s Safer Products for Washington proposal goes far beyond any other product safety regulation in place at the state, federal, or international level by restricting the use of organohalogen flame retardants [OFRs] in casings and enclosures of electronic and electrical equipment intended for indoor use,” the group wrote. “The proposal also creates an onerous and ambiguous reporting requirement for manufacturers of electronic and electrical equipment intended for outdoor use that contain OFRs in the casing or enclosure. In both cases, the ability to apply OFR chemistries to a wide variety of electronic products could be jeopardized.” The group said that flame retardants are necessary to prevent small fires from becoming major blazes. Washington was the first US state to regulate the flame retardant deca (PBDE) and remains at the fore in regulating this class of chemicals.

Los Angeles takes new steps against single-use plastics. In a move that could have a major effect on plastics manufacturers nationwide, on December 6, the Los Angeles City Council voted unanimously to approve an ordinance that prohibits the distribution and sale of expanded polystyrene products, often colloquially known by the trade name Styrofoam. The council also passed two similar ordinances the same day, also unanimously, closing loopholes in the city’s single-use plastic bag ban and requiring city departments to have zero-waste practices at city facilities and events. “Today, Los Angeles is once again taking the lead in defense of our environment,” said Councilmember Mitch O'Farrell. “We’re leading by example by committing to zero-waste policies in the operation of the city, and we’re moving forward with some of the boldest local ordinances in the country to reduce single-use plastic waste.”

Michigan legislators move to promote recycling. In a move that will promote the manufacture of recyclable substances in a key state, on December 7 the Michigan Senate approved a package of eight bills that would modernize the state’s waste and recycling collection system. The package, which if signed into law by the governor would go into effect in 2023, seeks to promote the use of recyclables and amends requirements currently in place for materials management plans which oversee the operation of solid waste management facilities. “The changes to Michigan solid waste policy embodied in the bill package mitigate the policy preference for landfill disposal of solid waste,” Michigan Recycling Coalition Executive Director Kerrin O’Brien said in a statement. “Counties will soon be funded and incentivized to plan for needed infrastructure, programs and services to manage waste more productively through reduction, recycling, composting and more." Among the measures in the bill is a requirement for waste haulers to provide recycling services to individual households alongside their other waste removal services. At this writing, the bill is heading to the desk of Governor Gretchen Whitmer.

NAM praises actions that prevented rail strike. On December 2, the National Association of Manufacturers said that President Joe Biden and both houses of Congress acted properly in intervening to stop a nationwide rail strike that could have crippled manufacturing, shipping, and the supply chain. “Earlier this year, manufacturers called for and supported the creation of the Presidential Emergency Board to rectify the stalemate between the unions and railways. But when it became clear they wouldn’t reach a negotiated resolution, we called on Congress to act,” said NAM President and CEO Jay Timmons. He added, “We thank President Biden, Secretaries Walsh and Buttigieg as well as manufacturing allies in Congress for listening to our industry and working quickly to avert this crisis,”

Major US manufacturing subsidies are becoming big concern for EU nations. On December 5, Reuters reported that countries in the European Union are upset about the major new government subsidies for US manufacturing found in the Inflation Reduction Act. They are not concerned about the new US commitment to clean energy; rather, they fear that the $430 billion act will unfairly disadvantage European manufacturers. The 27 EU member states worry that their manufacturers will be cut off from US tax credits that can be used for renewable energy technologies such as electric cars, which are only available for US-made cars. South Korean automakers have also expressed similar concerns. European Commission President Ursula von der Leyen said December 3 that while competition was a good thing, the playing field between US and foreign companies should be level.

Plastics makers say international agreement on plastics is the right idea. On December 2, the American Chemistry Council said that after a week of negotiations among governments at the UN’s Intergovernmental Negotiating Committee’s first of five meetings, the council and America’s plastic makers remain hopeful that a global plastics agreement will lead to progress towards eliminating plastic waste in the environment. At the committee meeting, governments expressed the desire to reach a bold agreement based on country-specific plans seeking to eliminate plastic waste. The council, and the US plastic-manufacturing industry, said that they support the same approach and want to partner with governments to tackle each country’s unique challenges. They noted that production caps on plastic could harm the environment because plastics are needed in the manufacture of wind turbines, solar panels, lightweight electric vehicles, and building insulation.

Biden Administration plans to simplify regulation of activity in space. The Biden Administration is drafting an executive order intended to streamline approval for private rocket launches, part of an effort to clarify regulatory matters for American companies that perform manufacturing activities in space. According to a Reuters report dated December 9, the order would be part of a push by the White House's National Space Council to modernize US space regulation, which has not kept up with the ambitious pace of private-sector investment and development. The order, slated to be ready for President Biden to sign by early 2023, is meant to simplify licensing procedures under existing laws for routine space activities like launching rockets and deploying satellites. Specifically, the Department of Commerce would create an online tool that walks companies through the process of getting licenses.