Beyond cosmetics: ARB enforcement of California’s Consumer Products regulation

We’ve previously published analyses on the California Air Resource Board’s (ARB) case settlements related to cosmetic products, but there are a whole host of other consumer products also subject to ARB enforcement. We thought it would be helpful to provide some insight into these as well.

Covered products

Quick refresh: beyond cosmetics, ARB limits VOC emissions from the following categories of consumer products:

  • Adhesives
  • 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
  • Disinfectants
  • Fabric protectants, refreshers, and softeners
  • General purpose cleaners
  • General purpose degreasers
  • Multi-purpose solvents
  • Furniture maintenance products
  • Footwear/leather care products
  • Household cleaning products (glass cleaners, dusting aids)
  • Household repair products (sealants and caulks)
  • Windshield washer fluid and water repellents
  • Insecticides, bug sprays, herbicides

Enforcement approach

ARB is authorized to seek 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. As with cosmetics, ARB typically seeks to settle violations through an administrative process, in which it purchases samples, tests them for VOC content, and requests sales data from the manufacturer or private/labeler if the testing yields non-compliance.

Based on that information, ARB determines the tons of VOC emitted above the limit (excess VOC per unit x units sold) and calculates a proposed penalty based on that amount. For example, in some cases, ARB may use a penalty calculus of $20,000 per excess ton of VOC. But ARB maintains discretion to use other methods of calculating penalties, especially if there are other factors in play. These include the number of days a product was available for sale, past violations or other aggravating issues, remedial measures taken, cooperation, and ability to pay.

For a second time violation, ARB has either sought and obtained penalties of approximately three times the rate for first time violations (three times $20,000 per ton) or $1,000 for each day that the products attributable to the violation were sold or offered for sale.

Settlement data

Between 2016 and 2018, ARB settled 56 cases involving products other than cosmetics. Although various products where subject of the settlement agreements, the most targeted categories were:

  • General purpose degreasers (5)
  • General purpose cleaners (7)
  • Air fresheners (9)
  • Metal polishes (5)
  • Automotive windshield washer fluids (5)

The windshield washer fluid settlements deserve a special note. This product type poses a complicated compliance challenge, as the VOC limits differ in different parts of the state. Based on review of these settlements, it seems that the alleged violations tend to occur when supply the same product to the entire state, running afoul of more stringent limits in limited parts of the state.

The alleged excess VOC emissions ranged from three pounds to 75.2 tons, with an average of 2.72 tons and median of 0.4 tons. The settled penalties ranged from $2,250 to $700,000, with an average of $40,000 and a median of $11,710.

In 48 of 56 cases, ARB reduced the penalty with the settling company. Comparable to the cosmetic settlement cases, ARB reduced the penalties for first time violations when the alleged violator made diligent efforts to comply and cooperate with the investigations.

ARB also considered various other factors, like the financial hardship of a company, efforts to reformulate the non-compliant product, discontinuing the manufacture of the product, or correction of the violation prior to ARB’s notification.

Interestingly, ARB reduced the penalty in one case although it involved a second time violation. This appears primarily to be due to the alleged violator recalling the product and modifying its compliance methods.