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The Nonessential Products Ban
Section 610 of the Clean Air Act (the Act) prohibits the sale, distribution, or offer for sale or distribution in interstate commerce, of certain nonessential products containing chlorofluorocarbons (CFCs) which are listed as class I substances, and hydrochlorofluorocarbons (HCFCs) which are listed as class II substances. The Environmental Protection Agency has issued regulations that implement this Congressionally-mandated ban on the sale and distribution of certain nonessential products.
EPA first promulgated regulations implementing this ban, including establishing exemptions to the ban, on January 15, 1993 (58 FR 4768), and on December 30 1993 (58 FR 69638, 58 FR 69672). EPA subsequently amended the class II ban to permit the use of HCFCs as fire extinguishants in portable fire extinguishers for non-residential applications (December 4, 1996, 61 FR 64424). In 2001, EPA published a rule that, among other things, reconsidered the previous exceptions to the class I Nonessential Products Ban (November 15, 2001; 66 FR 57512).
Nonessential Products
All aerosol products, pressurized dispensers and foam products containing, or manufactured with, CFCs and HCFCs -- except those specifically exempted by the regulations and those that are listed as essential medical devices by the Food and Drug Administration, at 21 CFR 2.125(e) -- are banned from sale and distribution in interstate commerce in the United States. Banned products cannot be incorporated into larger products (e.g. packaging material). In 2001, EPA also banned air-conditioning and refrigeration appliances that contain a class I substance (66 FR 57512).
Interstate Commerce
The term "interstate commerce" in section 610 refers to the product's entire distribution chain up to and including the point of sale to the ultimate consumer. Both the import of any product for sale or distribution within the United States, and/or the sale or distribution of any products intended for ultimate export from the United States, are acts of interstate commerce and accordingly, are affected by the nonessential products bans.
Grandfathering
Class I Ban:
- At the time the class I (or CFC) ban was promulgated, EPA provided a one-year sell-through for products that are considered nonessential and release CFCs during manufacture, use, or disposal. This sell-through expired on January 17, 1994.
- Banned replacement parts that contain or are manufactured with CFCs or are packaged in material that contain or are manufactured with CFCs, for use in a single model of a product, where the part and the product are no longer manufactured, and where the part was placed into initial inventory prior to April 16, 1992, may continue to be sold and distributed. In most cases these parts are for use in durable goods (e.g. replacement parts for a 1990 automobile).
Class II Ban:
- Banned products that contain or are manufactured with HCFCs, and were placed into initial inventory by the manufacturer by December 31, 1993, can continue to be sold and distributed, or offered for sale or distribution, in interstate commerce.
- A temporary exemption exists for banned HCFC-products that require federal approval for the reformulations (such as pesticides requiring registrations). In order to qualify for this exemption, applications to all appropriate federal agencies were due by January 1, 1994.
- A temporary exemption exists for integral skin foam products manufactured with HCFCs used to meet federal automotive safety standards where the products were placed into initial inventory prior to January 1, 1996.
Verification Documents
To continue selling or distributing grandfathered products the manufacturer or distributor must be able to show, upon request by EPA, that the products were in fact manufactured and thus placed into initial inventory by the appropriate allowable dates. EPA does not specify the particular type of documentation that verifies that a product meets the requirements for grandfathering. EPA suggests the use of shipping forms, lot numbers, manufacture date stamps, invoices, or the like, to identify the date the product was placed into initial inventory.
SUMMARY OF PRODUCT EXEMPTIONS UNDER THE NONESSENTIAL PRODUCTS REGULATIONS
Other than the products listed below, all aerosol, pressurized dispensers, and foam products that contain or are manufactured with CFCs, or HCFCs are banned. Certain products, including party streamers and noise horns were specifically banned by the Clean Air Act Amendments of 1990, effective February 16, 1993. Cleaning fluids for specific applications that contain CFCs are also banned. Certain products were, however, eligible for grandfathering. In addition, air-conditioning and refrigeration appliances that use class I substances as the refrigerant are banned.
| Exemptions | Conditions of Exemption |
|---|---|
| Aircraft pesticides | For use until an alternative is available |
| Medical devices | Contingent upon FDA listing at 21 CFR 2.125(e) |
| Lubricants, coatings, or cleaning fluids for aircraft maintenance containing CFCs or HCFCs as solvents | None |
| Lubricants, coatings, or cleaning fluids for electrical, electronic or photographic equipment containing CFCs or HCFCs as solvents | Cleaning fluids for electronic and photographic equipment are exempt for commercial sale/distribution only; seller must verify that the purchaser represents a commercial entity and post a sign regarding the restriction |
| Mold release agents containing CFCs and HCFCs as solvents | None |
| Mold release agents containing HCFC-22 as a propellant | For use where no alternative, including an alternative formulation, is available; seller must notify purchaser about the restriction |
| Spinnerette lubricant/cleaning sprays containing CFCs or HCFCs as solvents and/or propellants | None |
| Document preservation sprays containing CFCs and HCFCs as solvents | None |
| Document preservation sprays containing CFCS or HCFCs as propellants | For use on thick books, books with coated or dense paper, and tightly bound documents, only |
| Portable fire extinguishing equipment containing HCFCs as fire extinguishants | For use in non-residential applications only |
| Wasp and hornet sprays | For use near high-tension power lines only; seller must notify purchaser about restrictions |
| Exemptions | Conditions of Exemptions |
|---|---|
| Foam blown with CFCs used to provide thermal protection for space vehicles | None |
| Closed cell rigid polyurethane foam | None |
| Closed cell rigid polystyrene boardstock foam | None |
| Closed cell rigid phenolic foam | None |
| Closed cell rigid polyethylene foam | For use solely as pipe insulation |
| Integral skin foam blown with CFCs for use in commercial aviation manufactured and placed into initial inventory prior to January 14, 2002 | None |
| Exemptions | Conditions of Exemption |
|---|---|
| None | None |
| Exemptions | Conditions of Exemption |
|---|---|
| Non-aerosol cleaning fluids for electronic and photographic equipment containing CFCs | For commercial sale/distribution only; seller must verify that purchaser represents a commercial entity and post a sign about the restrictions |
| Categories | Conditions |
|---|---|
| Products containing HCFCs manufactured and placed into initial inventory by December 31, 1993 | Seller must retain proof of date of manufacture |
| Products containing HCFCs that require federal approval for reformulation for which an application was submitted to the approving agency by January 1, 1994 | Seller may continue to sell/distribute until:
|
| Integral skin foam used to provide motor vehicle safety manufactured and placed into initial inventory prior to January 1, 1996 | Seller must retain proof of date of manufacture |
| A replacement part, or its packaging, containing or manufactured with CFCs, where the replacement part was manufactured and placed into initial inventory prior to April 16, 1992 | For a part used in a single model of a product where both the product has not been manufactured on or after January 1, 1994; seller must retain proof of date of manufacture |
Regulations and Federal Register Notices
Class I Nonessential Products Ban
- Final Rule (January 15, 1993; 58 FR 4768)
- Proposed Rule (January 16, 1992; 57 FR 1992)
Class II Nonessential Products Ban
- Final Rule (December 30, 1993; 58 FR 69638)
- Proposed Rule (September 27, 1993; 58 FR 50464)
Class I Exemptions for Replacement Parts
- Direct Final Rule (December 30, 1993; 58 FR 69672)
Reconsideration of the Ban on Fire Extinguishers Containing HCFCs
- Final Rule (December 4, 1996; 61 FR 64423)
Reconsideration of the Class I Nonessential Products Ban
-
Final Rule (November 15, 2001; 66 FR 57511)
- Proposed Rule (June 14, 1999; 64 FR 31772)