Landmark Green Chemistry Regulations Take Effect in California

California’s groundbreaking Safer Consumer Product regulations took effect October 1, 2013.  The long-in-the-making green chemistry regulations establish a process for the California Department of Toxic Substances Control (DTSC) to identify consumer products containing chemicals of concern that warrant the evaluation of safer alternatives by manufacturers, retailers and others, and, if deemed necessary by DTSC, the imposition of product or chemical restrictions and conditions.  Ultimately, the regulations could change the way new consumer products are designed.

After many delays, proposals and revisions, on August 28, 2013, the regulations were approved by the California Office of Administrative Law (OAL) and filed with the California Secretary of State. The regulations come over two years after the statutory deadline of January 2011 set by California Assembly Bill 1879, enacted in 2008.  Still, some were surprised by the timing, since a few provisions were disapproved by OAL and are pending revisions by DTSC, the comment period for which closed September 9.  In particular, to gain approval for the last few provisions, DTSC has proposed clarifying its regulations so that any documents submitted to DTSC under the regulations must be in English and provided in electronic format; that DTSC must review trade secret claims so it does not withhold information from the public based upon an invalid claim; and that DTSC must notify a submitting party 30 days prior to rejecting information as trade secret so that the party may seek judicial intervention to prevent disclosure.

The newly effective Safer Consumer Product regulations apply to products sold, offered for sale, distributed, supplied or manufactured in California.  Given the size of California’s economy, in many respects the regulations will essentially be a de facto national law, bypassing the stalled reform of federal chemical laws.  Indeed, the state has fought against recent efforts to update the Toxic Substances Control Act in a manner that could preempt California regulations, such as its Safer Consumer Product regulations.

The new California regulations provide for a four-step process to identify safer consumer product alternatives:

1. Establishment of a list of Candidate Chemicals by DTSC, which initially includes approximately 1,200 chemicals, based upon the incorporation of 23 existing lists from around the globe.

2. Designation of Priority Product/Candidate Chemicals combinations by DTSC for which an assessment of safer alternatives must be conducted.

3. Performance of Alternative Assessments for designated Priority Products by manufacturers or other responsible entities, including importers, assemblers and retailers.

4. Imposition of conditions by DTSC, referred to as “Regulatory Responses,” for Priority Products or selected alternatives to protect public health and/or the environment, such as requiring notice to consumers, establishing end-of-life product stewardship programs, restricting the use of chemicals in a product or the use of a product, or banning sales of a product in California.

 

Upcoming actions by DTSC under the new regulations will include:

• Posting an informational list of the Candidate Chemicals on its website by November 1, 2013;

• Proposing an initial list of up to five Priority Products for public comment by April 1, 2014; and

• Preparing guidance for conducting Alternative Assessments.

As a threshold matter, a Priority Product must present a potential exposure to the Candidate Chemicals in the product and such exposures must contribute to or cause significant or widespread adverse public health or environmental impacts.  Only dangerous prescriptive drugs, devices and their packaging, dental restorative materials, medical devices, food, and pesticides are outright excluded from the regulations.  Priority Products will be established through the rulemaking process and DTSC will issue a Priority Product Work Plan identifying the product categories to be evaluated for Priority Products at least once every three years.  Anyone can also petition DTSC to add or remove Candidate Chemicals or Priority Products.

Time will also tell as to which products make the inaugural list of Priority Products due out next spring.  Based upon prior references by DTSC, personal care products, including nail polish, furniture flame-retardant chemicals, children’s products, and household cleaning products are potentially high on the list.  Businesses that believe their products should not be Priority Products will need to be prepared to demonstrate why that is the case under the regulations’ criteria.  For instance, products will be excluded if DTSC determines that a product is regulated by other federal or California programs or international treaties or trade agreements for the same adverse public health or environmental impacts, exposures pathways, and adverse waste and end-of-life effects that would otherwise be the basis for listing the product as a Priority Product, but only if it provides a level of public health and environmental protection equivalent to or greater than the protection under the regulations.

Those businesses with products included on the list for Alternative Assessments next year will face a steep learning curve as they, together with DTSC, sort through the application of the new regulations.  With these complex regulations now in effect, consumer product businesses should now be preparing to comply, as the time afforded is limited.  Unless extended, a responsible entity for a listed Priority Product will have only 60 days to submit initial notifications to DTSC and 180 days to submit a Preliminary Alternative Assessments to DTSC.  Although it is too early to tell which chemicals and products will first be called upon, manufacturers, importers, assemblers and retailers of consumer products can resolve compliance responsibilities throughout the distribution chain ahead of time and assess whether they have access to necessary product information and data, such as chemical product content, to determine the applicability of the regulation.  Responsible parties would also benefit by securing the necessary technical resources to comply.  For those businesses that do not have the internal resources or the means to comply on their own, they should take advantage of the time to locate or organize groups with others similarly situated, as allowed under the regulations, to share efforts to comply with the regulations.

The full brunt of the regulations may take time to reach across the consumer product industry.  However, over time the regulations promise to have wide-sweeping impacts on the way products are made and sold throughout the country.  Businesses that are not prepared could find their products banned from California.  On the other hand, those businesses that are prepared may get a leg up on their competition.  Indeed, as is hoped by its supporters, the mere existence of the regulations may ultimately serve to effectuate change through the design of new products that avoid the prospect of regulation.

Peter R. Duchesneau is a partner in the Los Angeles office of Manatt, Phelps & Phillips, LLP.  His practice focuses on environmental law involving litigation, administrative proceedings, regulatory compliance and business transactions.  He holds a B.S. degree in Chemical Engineering, is admitted to practice before the U.S. Patent and Trademark Office, and has significant experience with emerging chemicals and counseling clients on regulatory compliance involving green chemistry and other matters. Mr. Duchesneau can be reached at (310) 312-4209 or pduchesneau@manatt.com.

This column is part of a series of articles by law firm Manatt, Phelps & Phillips, LLP’s Energy, Environment & Natural Resources practice. Earlier columns in the third edition of this series discussed Retail Hazardous Waste Reform, Environmental Screening Tools, Nanotechnology Regulation, Federal Chemical Regulation Reform, Efforts to Address Climate Change and What the Sequester Means for Environmental Regulation