With the data demands of the California Air Resources Board Consumer Products Survey, it can be easy to miss the forest for the trees. The real concern if you are a manufacturer, importer, or private labeler of consumer products sold in California should be the underlying ARB Consumer Products Regulation.
The ARB Consumer Products Regulation establishes VOC limits for specified consumer products. The limits are measured in percent of VOC by weight. Consumer products subject to a limit may not be sold, supplied, offered for sale, or manufactured for sale in California unless they meet the limit. Consumer product categories with limits include, among others:
- Aerosol cooking sprays
- Air fresheners
- Laundry products (anti-static, prewash, starch, fabric finish)
- Car cleaning products (wash, compound, polish, wax, glaze)
- Automotive cleaning products (brake, carburetor cleaner)
- Bathroom and tile cleaners
- Carpet, floor, and upholstery cleaners
- Fabric protectants, refreshers, and softeners
- General purpose cleaners
- General purpose degreasers
- Multi-purpose solvents
- Hair styling products (mousse, shine, finishing spray)
- Furniture maintenance products
- Footwear/leather care products
- Personal fragrance products (body sprays, cologne, perfume)
- Household cleaning products (glass cleaners, dusting aids)
- Household repair products (sealants and caulks)
- Windshield washer fluid and water repellents
- Insecticides, bug sprays, herbicides
The Consumer Products Regulation authorizes per unit civil penalties of up to $1,000 per day for strict liability violations and up to $25,000 per day for negligent violations. ARB typically seeks to settle violations through an administrative process.
In this process, ARB purchases samples, tests them for VOC content, and then requests sales data from the manufacturer and/or private labeler. It then totals up the units sold to determine VOC emitted above the limit, basing its penalty demand on excess tons of VOC.
ARB currently uses a penalty calculus of $20,000 per excess ton of VOC, with a de minimis settlement floor of $3,000. However, it has discretion to use other approaches to calculating penalties depending upon the circumstances (such as days a product was available for sale). Generally speaking, ARB is focused on compliance and remediation – taking measures to fix the problem going forward go a long way in negotiating penalty settlements.
In the case of private label products, ARB seeks to include both the private labeler and the manufacturer in the settlement. For products with no domestic manufacturer, ARB is likely to come after the importer or retailer.
ARB as been active in enforcing the Consumer Products Regulation in 2015. It has already published 18 settlements, with penalties ranging from about $5,000 to about $38,000. In 2014, ARB also entered into a substantial number of settlements, with a number of high value penalties, ranging from about $145,000 to $400,000.