Articles

The Evolution of Air Freshener Litigation and Regulations

In an effort to minimize the health hazards and air pollution caused by air fresheners, the California Environmental Protection Agency's Air Resources Board recently enacted stricter requirements for aerosol air fresheners. The new requirements included changes to the volatile organic compound ("VOC") and global warming potential ("GWP") standards

Effective December 31, 2012, all double phase aerosol air fresheners must contain a VOC standard of 20, a decrease from 25 (enacted in 2004). Moreover, the global warming potential, as specified by the Intergovernmental Panel on Climate Change's Second Assessment Report, for aerosol air fresheners is 150, which means that any chemical compound that has a GWP value of 150 or greater is prohibited. Importantly, no change was made to the single phase aerosol air freshener standard.

However, to facilitate the transition period after the new regulatory requirements became effective, the regulations contain a "sell-through" provision which allows the sale or supply of non-complying consumer products for up to three years if they were manufactured prior to the effective date of the applicable standard and meet certain requirements

In the last few years, household air fresheners have been under scrutiny by environmental agencies and groups for alleged hazards associated with these household products. Groups like the National Resources Defense Council ("NRDC") have conducted studies and regulatory boards like the California Environmental Protection Agency's Air Resources Board ("Air Resources Board") have cited manufacturers for potential health hazards and air pollution violations.

Beginning in 2007, the alleged hazards associated with household air fresheners gained notoriety when the NRDC conducted a study of fourteen common household air fresheners in which the NRDC tested for the presence of phthalates, a chemical which animal studies have shown can change hormone levels and cause birth defects. Although phthalates are found in numerous products, including plastics, glues, medical devices, children's toys, food products, and many other consumer products, the study focused on the health hazards associated with the chemical. The NRDC's test results concluded that only two of the fourteen air freshener products did not contain detectable levels of phthalates and that none of these phthalate-containing air fresheners listed the chemical or its associated hazards on their labels.

After conducting the study, the NRDC, along with the Sierra Club and the National Center for Healthy Housing, filed a petition requesting the United States Environmental Protection Agency ("EPA") and the Consumer Products Safety Commission test air fresheners to determine the health effects they may have on humans. The petition was rejected and subsequently the NRDC filed a lawsuit against the EPA to require the government to mandate that manufacturers test air fresheners for safety and properly label their products with the full ingredient lists. The lawsuit however, was voluntarily dismissed by the NRDC and Sierra Club and the terms of the dismissal remain unknown.

Prior to the dismissal of the lawsuit, the Consumer Specialty Products Association ("CSPA"), a trade group which represents the interests of manufacturers of consumer products, issued a statement criticizing the study for its small sample size, which it argued was so limited that it could not account for laboratory error and numerous other variables that affect such a small sample. Further, the CSPA emphasized that air freshener products already undergo extensive testing to meet the standards set by regulatory agencies.

More recently, air fresheners have been monitored by the Air Resources Board for potential air pollutions violations. On January 8, 2013, the California Environmental Protection Agency's Air Resources Board announced that it had settled 38 cases with various manufactures and sellers of air fresheners and other consumer products whose products were in violation of air quality control regulations for exceeding California's limits for volatile organic compounds. Volatile organic compounds are gases released from solids and liquids that contribute to the formulation of ozone, which have been known to cause adverse respiratory health effects, once they are released into the air.

It is anticipated that the hazards associated with air fresheners will continue to be assessed by various environmental and consumer health groups and agencies. Therefore, manufacturers must comply with new regulations or they could face stiff penalties as a result of non-compliance.

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