Presentations May 23 – 25, 2005 Portland, Maine For related information visit:

In the beginning.... Labeling Lamps -inform the purchaser on the invoice Ban on toys Ban on mercury manometers MN

Minnesota

Vermonts 1998/1999 Legislation Vermonts 1998/1999 Legislation manufactured All mercury-added products manufactured after March 1, 2000 must be labeled. Certified Labeling Plan Manufacturers provide a Certified Labeling Plan – Detailed descriptions of the products – Label size & material – Label wording – Label location and attachment method

Alternative Labeling:

VT Labeling Law VT Labeling Law Label: Product Product Prior to purchase Prior to purchase Products to be labeled: – Thermostat or thermometer – Switch, individually or as part of another product – Medical or scientific instrument – An electric relay or other electrical device – A battery– other than a button battery – k A lamp

Vermonts breakthroughs in lamp labeling...

Lamps manufactured after November 2003 must be labeled. Lamps were labeled nationally/internationally

Lamp Package Label

HID AUTOMOBILE HEADLIGHT

MODEL LEGISLATION Comprehensive: Comprehensive: Designed to achieve virtual elimination goal Regional: Regional: Promotes consistency across the states Menu: Menu: Enables states to select provisions that are best suited to their jurisdiction/political interests

Labeling Model / VT Labeling Model Label: – Product – Component – Prior to purchase – Package Products to be labeled: – Fabricated products – Formulated products Responsibility – Final manufacturer Vermont Label: – Product (Component) – Prior to purchase (Package) Products to be labeled: Vermont list – Vermont list Responsibility – Manufacturer of product

States that followed... MAINE Vermonts List Lamps on InvoiceOREGON ThermostatsWASHINGTON Lamps

More states that followed... NEW YORK Model Legislation Lamps Batteries Developing Rules RHODE ISLAND Model Legislation Lamps on Invoice No BatteriesCONNECTICUT Model Legislation Lamps Products w/Batteries

Non-replaceable +7 – Productor – Product or Care & Use – Component – Component (lamp) orCare & Use – Package or Care & Use Non-replaceable 7 orCare & Use – Product or Care & Use – Component – Component (lamp) orCare & Use – Package or Care & Use Non-replaceable +7 – Product – No – No (lamp) label – Care & Use Non-replaceable 7 – Care & Use – No (lamp) label CONNECTICUT CONNECTICUT ELECTRONICS LABELING VERMONT 2007 VERMONT 2007 ELECTRONICS LABELING

Replaceable lamps – Product or – Package or Care & Use – Visible prior to purchase Replaceable lamps – Product – Package – Care & Use (if any) – Visible prior to purchase CONNECTICUT CONNECTICUT ELECTRONICS LABELING VERMONT 2007 VERMONT 2007 ELECTRONICS LABELING

Whats the difference? Products with button cell batteries – Connecticut and New York Medical products – Vermont and New York

Contact Information KAREN KNAEBEL (802)

Presentations May 23 – 25, 2005 Portland, Maine

Legal Issues & Challenges with Mercury Reduction & Labeling Laws Jon Hinck Natural Resources Council of Maine May 24, 2005 ACHIEVING MERCURY REDUCTION IN PRODUCTS & WASTE: COORDINATING NATIONAL & LOCAL GOVERNMENT INITIATIVES CONFERENCE

TWO CASE STUDIES: MAINE'S AUTO SWITCH LAW MAINE'S AUTO SWITCH LAW 38 M.R.S.A. §1665-A(1) (2002) VERMONT'S MERCURY LABELING LAW VERMONT'S MERCURY LABELING LAW Vt. Stat. Ann. tit. 10, § 6621d(a)(1998)

Mercury Products law enacted in 2000 requiring: Mercury Products law enacted in 2000 requiring: Labeling and Labeling and Recycling Recycling Auto switch part delayed 6 months to address concerns of the Alliance of Automobile Manufacturers (AAM) and the Maine Auto Recyclers Association (MARA). Auto switch part delayed 6 months to address concerns of the Alliance of Automobile Manufacturers (AAM) and the Maine Auto Recyclers Association (MARA). DEP directed to develop a plan for auto switches DEP directed to develop a plan for auto switches Origins of Maines Mercury Switch Law

Enactment of Maine Auto Switch Law, 38 M.R.S.A. §1665-A(1) In April 2002, Maine enacts law that requires automakers to: set-up a statewide system to collect, consolidate and recycle mercury-added switches set-up a statewide system to collect, consolidate and recycle mercury-added switches pay a $1 per switch bounty to car recyclers pay a $1 per switch bounty to car recyclers

Key Elements of the Maine Law Shared Responsibility for removal and recycling of Hg switches : Shared Responsibility for removal and recycling of Hg switches : ELV handlers remove the switches, log and transport them to a consolidation facility. ELV handlers remove the switches, log and transport them to a consolidation facility.

Automakers establish consolidation facilities, pay $1 for each switch delivered to the facilities, and ship for recycling. Automakers establish consolidation facilities, pay $1 for each switch delivered to the facilities, and ship for recycling. The DEP provides information and training on removal and recycling of the switches. The DEP provides information and training on removal and recycling of the switches. Key Elements of the Maine Law Continued

Implementation by Automakers Plans received from AAM, Subaru, Recreation Vehicle Industry Association and Truck Manufacturers Association. Plans received from AAM, Subaru, Recreation Vehicle Industry Association and Truck Manufacturers Association.

Elements of AAM plan (covering most of the fleet) Two consolidation locationsPortland and Bangor. Two consolidation locationsPortland and Bangor. Party delivering switches to these locations must: Party delivering switches to these locations must: 1. Provide VINs for each source vehicle; and 2. Certify that source vehicles were dismantled in Maine.

Alliance of Automobile Manufacturers v. Kirkpatrick (Fed. District Court of Maine) AAM sued, arguing the law violates its members rights under the following clauses of the U.S. Constitution: AAM sued, arguing the law violates its members rights under the following clauses of the U.S. Constitution: (1) Dormant Commerce; (1) Dormant Commerce; (2) Equal Protection; and (2) Equal Protection; and (3) Due Process (3) Due Process

AAM v. Kirkpatrick On July 17, 2003, U.S. Magistrate Judge Margaret Kravchuk issued an opinion recommending dismissal. On July 17, 2003, U.S. Magistrate Judge Margaret Kravchuk issued an opinion recommending dismissal. On February 17, 2004, the U.S. District Court adopted the recommended decision granting summary judgment for Maine. On February 17, 2004, the U.S. District Court adopted the recommended decision granting summary judgment for Maine.

AAM v. Kirkpatrick Analysis The opinion recognizes the States broad authority to protect public health and the environment.

Pursuing those objectives, the State can shift costs to parties responsible for creating a recognized hazard such as mercury pollution. Pursuing those objectives, the State can shift costs to parties responsible for creating a recognized hazard such as mercury pollution. AAM v. Kirkpatrick Analysis

The Alliance has not challenged Maines assertion that upwind release of mercury results in appreciable mercury deposition in Maine or that the burden placed on manufacturers is wholly out of proportion to the degree of harm presented. Each of the challenged provisions appears to have a rational relationship to advancing the mercury remediation effort. The Alliance has not challenged Maines assertion that upwind release of mercury results in appreciable mercury deposition in Maine or that the burden placed on manufacturers is wholly out of proportion to the degree of harm presented. Each of the challenged provisions appears to have a rational relationship to advancing the mercury remediation effort. AAM v. Kirkpatrick Analysis

The obvious answer to the Alliances [interstate commerce clause] challenge it that it is not excessively burdensome to impose on those who placed mercury switches in interstate commerce a reasonable financial obligation to help ensure that the encapsulated mercury does not cause harm to public health or the environment. The obvious answer to the Alliances [interstate commerce clause] challenge it that it is not excessively burdensome to impose on those who placed mercury switches in interstate commerce a reasonable financial obligation to help ensure that the encapsulated mercury does not cause harm to public health or the environment.

AAM v. Kirkpatrick Analysis The Alliance ultimately fails to make any factual showing in support of its conception of fairness. What is offered is that the manufacturers estimate the cost of compliance to amount to roughly $200,000 in start up costs and projected annual costs of $120,000. In my view, this simple showing falls short of demonstrating a clearly excessive burden in relation to the local benefit of recovering switches

According to the Alliance, because certain provisions in the Act serve the purpose of protecting domestic industries from certain financial and administrative burdens under the regulatory scheme, the Court should infer that these same burdens were relegated to manufacturers 'solely because of their residence.' This simply does not follow. According to the Alliance, because certain provisions in the Act serve the purpose of protecting domestic industries from certain financial and administrative burdens under the regulatory scheme, the Court should infer that these same burdens were relegated to manufacturers 'solely because of their residence.' This simply does not follow. AAM v. Kirkpatrick Analysis No violation of Due Process and Equal Protection

It is far more plausible that the primary burden was imposed on manufacturers in recognition of the fact that the need for a mercury switch recovery program existed solely by virtue of the manufacturers' incorporation of these mercury-laden components in their automobiles for roughly ten years after the industry's cognizance of the mercury disposal problem. It is far more plausible that the primary burden was imposed on manufacturers in recognition of the fact that the need for a mercury switch recovery program existed solely by virtue of the manufacturers' incorporation of these mercury-laden components in their automobiles for roughly ten years after the industry's cognizance of the mercury disposal problem. AAM v. Kirkpatrick Analysis No violation of Due Process and Equal Protection

The Court also rejected the automakers slippery slope argument alleging harm that would arise if other states adopted their own version of this law. In response, the Court said that the consequence would be akin to multi-state bottle bills, posing no great restriction on commerce. The Court also rejected the automakers slippery slope argument alleging harm that would arise if other states adopted their own version of this law. In response, the Court said that the consequence would be akin to multi-state bottle bills, posing no great restriction on commerce. AAM v. Kirkpatrick Analysis

Vermont Mercury Labeling Law 1998 Vermont law, 10 Vt. Stat. Ann. § 6621d, (as later amended) requires labeling of mercury-added consumer products. The label must: inform consumers that (1) the product contains mercury and (2) should be recycled or disposed of as hazardous waste and not discarded Vermont law, 10 Vt. Stat. Ann. § 6621d, (as later amended) requires labeling of mercury-added consumer products. The label must: inform consumers that (1) the product contains mercury and (2) should be recycled or disposed of as hazardous waste and not discarded.

Vermont Mercury Labeling Law Applies to: thermostats; thermometers; switches; medical and scientific devices; electrical relays and other electrical devices; lamps; and certain batteries. Applies to: thermostats; thermometers; switches; medical and scientific devices; electrical relays and other electrical devices; lamps; and certain batteries.

Natl Elec. Mfgs (NEMA) v. Sorrell In 1999, The National Electrical Manufacturers Association (NEMA) – a trade association – filed suit in federal court on behalf of manufacturers of fluorescent and other mercury-containing lamps. In 1999, The National Electrical Manufacturers Association (NEMA) – a trade association – filed suit in federal court on behalf of manufacturers of fluorescent and other mercury-containing lamps. NEMA sought to enjoin enforcement of the labeling requirement. NEMA sought to enjoin enforcement of the labeling requirement.

NEMA v. Sorrell NEMA claims: NEMA claims: Labeling requirement violates its members' constitutional rights under the: Labeling requirement violates its members' constitutional rights under the: (1) Commerce; (1) Commerce; (2) Supremacy; and (2) Supremacy; and (3) Due Process Clauses, and (3) Due Process Clauses, and (4) the First Amendment. (4) the First Amendment.

NEMA v. Sorrell, On 11/8/99, District Court, Judge Garvan Murtha issued a preliminary injunction barring enforcement holding that NEMA had demonstrated a likelihood of success on the merits. On 11/8/99, District Court, Judge Garvan Murtha issued a preliminary injunction barring enforcement holding that NEMA had demonstrated a likelihood of success on the merits. The 11/6/01, the Second Circuit Appeals Court reversed holding for the State of Vermont. 272 F.3d 104 (2 nd Cir. 2001) The 11/6/01, the Second Circuit Appeals Court reversed holding for the State of Vermont. 272 F.3d 104 (2 nd Cir. 2001)

NEMA v. Sorrell Analysis (Commerce Cl.) Standard: Dormant Commerce Clause is Violated by a Statute that imposes a burden on interstate commerce greater than the local benefits secured. Standard: Dormant Commerce Clause is Violated by a Statute that imposes a burden on interstate commerce greater than the local benefits secured.

NEMA v. Sorrell Analysis (Commerce Cl.) The statute does not inescapably require manufacturers to label all lamps wherever distributed.... To the extent the statute may be said to require labels on lamps sold outside Vermont, then, it is only because the manufacturers are unwilling to differentiate between Vermont-bound and non- Vermont-bound lamps. The statute does not inescapably require manufacturers to label all lamps wherever distributed.... To the extent the statute may be said to require labels on lamps sold outside Vermont, then, it is only because the manufacturers are unwilling to differentiate between Vermont-bound and non- Vermont-bound lamps.

NEMA v. Sorrell Analysis (Commerce Cl.) Rejected claim that the law burdens interstate commerce with the possibility of multiple, inconsistent labeling requirements between states. It is not enough to point to a risk of conflicting regulatory regimes in multiple states; there must be an actual conflict. Rejected claim that the law burdens interstate commerce with the possibility of multiple, inconsistent labeling requirements between states. It is not enough to point to a risk of conflicting regulatory regimes in multiple states; there must be an actual conflict.

NEMA v. Sorrell Analysis (Commerce Cl.) Whatever the policy reasons may be in support of a nationally uniform regulatory framework for mercury- containing products, such a framework is not compelled by the Commerce clause. Whatever the policy reasons may be in support of a nationally uniform regulatory framework for mercury- containing products, such a framework is not compelled by the Commerce clause.

NEMA v. Sorrell Analysis (1 st A.) The (First) Amendment is satisfied... by a rational connection between the purpose of a commercial disclosure requirement and the means employed to realize the purpose. The (First) Amendment is satisfied... by a rational connection between the purpose of a commercial disclosure requirement and the means employed to realize the purpose.

NEMA v. Sorrell Analysis (1 st A.) Vermonts interest in protecting human health and the environment from mercury poisoning is a legitimate and significant public goal....We believe that such a reasonable relationship is plain in this case. Vermonts interest in protecting human health and the environment from mercury poisoning is a legitimate and significant public goal....We believe that such a reasonable relationship is plain in this case.

NEMA v. Sorrell Analysis (1 st A.) The prescribed labeling would likely contribute directly to the reduction of mercury pollution....It is probably that some lamp purchasers, newly informed by the Vermont label, will properly dispose of them and thereby reduce mercury pollution. The prescribed labeling would likely contribute directly to the reduction of mercury pollution....It is probably that some lamp purchasers, newly informed by the Vermont label, will properly dispose of them and thereby reduce mercury pollution.

NEMA v. Sorrell Analysis (1 st A.) States are not bound to follow any particular hierarchy in addressing problems within their borders.... a state may choose to tackle a subsidiary cause, particularly where the primary cause lies out of its reach. States are not bound to follow any particular hierarchy in addressing problems within their borders.... a state may choose to tackle a subsidiary cause, particularly where the primary cause lies out of its reach.

What are our options? Three Categories of Mercury Legislation: 1) Bans on sale and distribution of mercury-added products; 2) Manufacturer responsibility for recovery and recycling; and 3) Mandatory labeling with notice of mercury content and recycling tips

Warning TOXIC FISH