California Adopts Landmark Green Chemistry Regulations

by Manatt, Phelps & Phillips, LLP
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On August 28, 2013, the California Office of Administrative Law approved the California Department of Toxic Substances Control (DTSC) Safer Consumer Product regulations. The groundbreaking green chemistry regulations take effect October 1, 2013, establishing a process to identify and prioritize consumer products containing chemicals of concern, warranting evaluation of safer alternatives and providing for the potential imposition of product or chemical restrictions by DTSC.

The regulations have been years in the making, after California Assembly Bill 1879 was enacted in 2008, mandating the regulations. Although reform of chemical laws has been held up for years at the federal level, the application of DTSC’s unprecedented regulations will reach well beyond California, potentially affecting a wide range of products, from personal care to furniture to high-tech products.

The 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 1200 chemicals based upon the regulations’ incorporation of 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 Alternatives Assessments for designated Priority Products by manufacturers or other responsible entities, including importers, assemblers and retailers.
  • 4. Imposition of conditions by DTSC – “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.

Consumer product businesses should be taking measures now to ready for complying with these complex regulations. Manufacturers, importers, assemblers and retailers should look to resolve compliance responsibilities and secure the necessary resources for achieving compliance before products become subject to the regulations. With tight compliance deadlines, businesses can ill afford to wait until their products come up in the queue for an alternative assessment. Businesses that do not have sufficient means on their own should consider taking part in consortia with others similarly situated, as allowed under the regulations.

The next steps to be taken by DTSC under the regulations 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.

While long in the making, the time has come for consumer product businesses to prepare for compliance with the California Safer Consumer Products regulations. It is anticipated that many businesses will fight hard to keep their products off of the inaugural list of Priority Products next spring. To do so, businesses need to be prepared to make their case to DTSC. Those businesses with products included on the final list for Alternative Assessments next year will face a steep learning curve and will, perhaps unwillingly, be pioneers in this regulatory experiment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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