On July 27, the California Department of Toxic Substances Control (DTSC) released the most recent version of its proposed Safer Consumer Products Regulations, an element of DTSC’s “Green Chemistry” initiative. The regulations establish a process for manufacturers and other responsible entities to examine whether their products contain any of the listed “chemicals of concern” and, if so, whether a safer alternative chemical exists. The proposed regulations are currently subject to a 45-day comment period and are expected to be finalized near the end of the year.
The regulations arise out of AB 1879 and SB 509, both signed by Governor Schwarzenegger in September 2008. These bills sought to reduce the adverse environmental and human health impacts of certain products sold in California through a reduction in the toxic chemicals used to manufacture these products. This so-called “cradle-to-cradle” regulatory program for hazardous materials is a first in the United States and is similar to programs implemented in the EU.
The proposed regulations establish a four-step process to achieve the goals of the two bills: (1) identify and create a list of chemicals that are toxic and can harm people or the environment; (2) prioritize products containing those chemicals; (3) require manufacturers of those products to perform detailed alternatives assessments; and (4) establish various regulatory response actions to address any remaining concerns raised by the alternatives assessments. These elements are discussed briefly below:
Chemicals of Concern (COC) List
DTSC established a list of roughly 1,200 chemicals of concern (COC) subject to further review and regulation, a list which includes regulated chemicals under Proposition 65, Clean Water Act, Safe Drinking Water Act, International Agency for Research on Cancer, and California’s Safe Cosmetics Program among others. DTSC will review and revise the COC list at least once every three years and chemicals may be added based on factors such as volume, potential exposure, adverse impact on the environment and effect on sensitive sub-populations. The COC list takes effect immediately upon finalization of these regulations.
Priority Product List
Ultimately, the regulations are intended to cover all consumer products that contain a COC and are sold, offered for sale, supplied, distributed, or manufactured in California. However, the regulations provide for a Priority Product List, including household cleaning products, personal care products and children’s products that will be the focus of DTSC’s initial efforts under the program.
The proposed regulations provide for detailed alternatives assessment (AA) requirements to determine if a viable, safer alternative to the chemical exists. Manufacturers will be required to provide a preliminary AA report no later than 180 days after a product is listed on the final Priority Products List and a final AA report no later than 12 months after the date DTSC issues a notice of compliance based on the preliminary AA report.
Regulatory Response
Upon receipt and review of the final AA report, DTSC may take no action, or require additional action such as seeking additional information, labeling, end-of-life management, usage restriction, limited exposure and new alternatives assessment. DTSC may also prepare a research and development challenge or ban the product’s sale entirely.
DTSC is planning to post a Failure to Comply List with information on the non-complying parties and products, including: identification and description of the product; basis for the notice of non-compliance; COC(s) in the product; identification of any manufacturer and importer DTSC has notified of noncompliance; and name and contact information of the retailer of the product. The regulations contemplate that a manufacturer of a Priority Product will be primarily responsible for compliance, but an importer may also be held responsible if the manufacturer does not comply. Moreover, retailers will have a duty to comply if the information is posted on the Failure to Comply List (i.e., neither the manufacturer nor importer has complied).
The proposed regulations contain changes from prior drafts, the most significant of which include a reduction from 3,000 to approximately 1,200 listed chemicals of concern; the augmentation of the petition process to allow for petitions to remove/add chemicals to the COC list and remove products from the Priority Products List; the elimination of automatic exemptions for products regulated by other laws (e.g., FIFRA); a relaxing of AA requirements where information would be difficult and/or costly to obtain; and clarification that the potential hazards of a chemical cannot be designated as trade secrets.
DTSC is accepting public comment on the proposed regulations until September 11, 2012.
Contacts
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Rothman-RickThis article was originally published by Bingham McCutchen LLP.