Written on: November 1, 2024 by Nicholas Georges
On July 31, the Consumer Product Safety Commission (CPSC or Commission) issued a notice of proposed rulemakingi to prohibit the sale of any aerosol duster that contains more than 18mg in any combination of HFC-152a and/or HFC-134a under the Federal Hazardous Substances Act (FHSA).
This proposed rulemaking stems from a petitionii submitted in 2021 by Families United Against Inhalant Abuse (FUAIA), which requested CPSC to conduct a rulemaking to address the injuries and deaths associated with the intentional misuse of aerosol dusters through inhalant abuse. The Commission granted the petition in 2023 and directed staff to initiate a rulemaking.
In lieu of a product ban, CPSC staff assessed four alternatives to the proposed rule:
1. Performance requirements
2. Aversive agents (bitterants)
3. Labeling requirements; and
4. Take no regulatory action and continue to rely on the voluntary standards process
Deciding that none of these alternatives would adequately address the hazard associated with aerosol dusters, the Commission pursued a ban under multiple sections of the FHSA, including 15 U.S.C. 1261(q)(1)(B), which grants CPSC the authority to ban any substance or product sold to consumers if the hazard is such that the objective of protecting public health and safety can only be adequately served by keeping the substance/product out of the channels of interstate commerce. According to CPSC’s analysis, HFC-152a and HFC-134a are addictive and can damage the heart when abused, so must be prohibited in aerosol dusters.
In reviewing CPSC’s citations for the analysis, it’s clear that the Commission relied heavily on studies about general inhalant abuse, not specific research related to HFC-152a or HFC-134a. In fact, the primary studyiii that CPSC cited to prove the addictiveness of these propellants is actually about Toluene (a clear, colorless liquid that becomes a vapor when exposed to air at room temperature, typically used in a mixture with other solvents and chemicals, such as paint pigments–Editor).
The Commission also failed to acknowledge that inhalant abuse is a behavioral issue that needs to be addressed at its core, not a problem with a specific product.iv
Additionally, there is an issue with the Commission’s application of the FHSA. The authority to ban substances in products has been utilized previously; however, it has never been done in an instance where the end-user would have to intentionally misuse the product. While CPSC has the authority to address accidental misuse and defects within products, the Household & Commercial Products Association (HCPA) does not believe this authority extends to situations in which a product is safe when used as intended and according to the label directions, but is misused intentionally for the purpose of getting high.
HCPA and member companies agree that it is extremely important to address the dangers of inhalant abuse and that action needs to be taken. With that in mind, HCPA provided an alternative proposal—based on a law enactedv in Minnesota earlier this year—for CPSC to consider rather than a product ban.
(1) Definitions. For the purposes of this voluntary standard, the following terms have the meanings given:
a. “Aerosol duster” means a product used to clean electronics and other items by means of an aerosol sprayed from a pressurized container.
b. “Behind-the-counter” means placement by a retailer of a product to ensure that customers do not have direct access to the product before a sale is made, requiring the seller to deliver the product directly to the buyer.
(2) Requirements for retail sale. A retailer must only sell an aerosol duster product to a consumer:
a. from behind the counter;
b. to a purchaser who presents valid evidence that the purchaser is at least 21 years of age; and
c. in a quantity that complies with the purchasing limit established in the next section (3).
(3) Purchasing limit.
a. A retailer is prohibited from selling a consumer more than three cans of an aerosol duster in a single transaction.
b. A retailer is prohibited from selling consumers aerosol dusters through same day pick up services or same day delivery services.
(4) Exemption.
a. Section 2 and Section 3 do not apply to a business purchasing aerosol dusters online.
b. Office wholesalers can sell more than three cans of aerosol dusters to a business they have a contract with.
(5) Labeling.
a. An aerosol duster manufactured after Jan. 1, 2026, must not be sold in the U.S. unless the aerosol duster clearly warns against the dangers of intentionally misusing duster aerosol products.
b. The font size of this warning shall be the same or larger than other warning language. The font color and background of the label must be in contrasting colors.
c. The label on each can of aerosol duster product must contain the following:
i. The words “DANGER: DEATH! Breathing this product to get high can kill you!”; and
ii. The poison control phone number, 1-800-222-1222.
d. In order to comply with paragraph (a), a label may include, but is not limited to the words:
i. “Deliberate misuse by concentrating and inhaling the contents can be harmful or fatal!”; and
ii. “Intentional misuse by deliberately concentrating and inhaling the vapors can be harmful or fatal!”
e. An aerosol duster may not be named or marketed as “compressed air.”
f. The safety symbols and color standards of the label described in this section must conform with the ANSI Z535 safety signage standards guidelines established by the American National Standards Institute.
HCPA recognizes that CPSC does not have the authority to create a regulation with all of these requirements. Therefore, HCPA proposed to the Commission that it create a voluntary standard that it would then make mandatory. Not only did HCPA members collaborate on this proposal, but it was also shared with other stakeholders, including retailer trade associations, so it could ensure consensus moving forward.
It is important to classify inhalant abuse as a form of substance abuse—the same as alcohol, illicit drugs and prescription drugs—and recognize that those people who engage in this behavior often have underlying issues that must be addressed through appropriate treatment. This alternative proposal would help educate people about the dangers of inhalant abuse, hopefully helping to resolve this behavioral issue.
Many consumer products (more than 1,000)vi have the potential of being abused as an inhalant. Banning a product due to this misuse will not solve the problem—people will choose another product or illicit substance to abuse as a way to get high.
HCPA’s comments to the Commission are available onlinevii; it will continue to advocate on this critical issue with both CPSC and Congress. For more information or to discuss this issue further, please contact me at ngeorges@thehcpa.org. SPRAY
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iv Radparvar S. The Clinical Assessment and Treatment of Inhalant Abuse. Perm J. 2023;27(2):99-109. doi:10.7812/TPP/22.164
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