California Announces First Draft Priority Products under Safer Consumer Products Regulations

by Bergeson & Campbell, P.C.
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The California Department of Toxic Substances Control (DTSC) announced on March 13, 2014, the first draft Priority Products (PP) under the Safer Consumer Products Regulations (SCPR). The three draft PPs are:

  • Children's foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP);
  • Spray polyurethane foam (SPF) systems containing unreacted diisocyanates; and
  • Paint and varnish strippers and surface cleaners containing methylene chloride.

DTSC states that the designation as a draft PP "imposes no new regulatory requirements on manufacturers until DTSC finalizes it by adopting regulations." Under the SCPR, DTSC will begin a rulemaking process for each PP, and DTSC anticipates it could take a year to promulgate a final rule. Once the final rules adopt the PPs into the regulations, manufacturers of PPs will have 60 days to notify DTSC and begin the Alternatives Analysis (AA) process. DTSC states that the findings of each manufacturer's AA report will determine what regulatory response, if any, DTSC may impose. Under the SCPR, DTSC has available a range of regulatory responses, from product labeling to a sales prohibition. More information is available on DTSC's website.

Background

The SCPR, which took effect on October 1, 2013, is part of California's Green Chemistry Initiative. Memoranda regarding the development of the SCPR are available on Bergeson & Campbell, P.C.'s website.

The first action taken by DTSC under the SCPR was the September 28, 2013, release of its "candidate chemicals" list. DTSC released the list of Candidate Chemicals on September 28, 2013, and estimates that it contains approximately 1,200 chemicals. Of these, approximately 164 substances were included on the "Initial Candidate Chemicals List" that DTSC could consider when reviewing product-chemical combinations as PPs prior to January 1, 2016.

Draft PPs

The SCPR defines a PP as a consumer product that contains one or more Candidate Chemicals that have a hazard trait that can harm people and the environment. DTSC states that it selected the three draft PPs based on two criteria in the SCPR: "1) the products have the potential to expose people or the environment to one or more Candidate Chemicals, and 2) this exposure has the potential to 'contribute to or cause significant or widespread adverse impacts.'"

DTSC provides the following descriptions for the draft PPs:

  • Children's foam-padded sleeping products containing TDCPP: Includes the following sleeping products containing polyurethane foam and TDCPP:
    • Nap mats with polyurethane foam;
    • Juvenile product pads in soft-sided portable cribs;
    • Infant travel bed foam;
    • Portable infant sleeper foam;
    • Playard foam;
    • Play pen foam;
    • Bassinet foam;
    • Nap cots with foam pads;
    • Car bed foam pads; and
    • Foam sleep positioners.
  • SPF systems containing unreacted diisocyanates: SPF systems for use as insulation, roofing, sealing, filling of voids and gaps, and for other uses such as in the creative arts that contain any of the diisocyanates listed under Chemicals of Concern and Respective Hazard Traits, below:
     
    Under the Global Product Classification (GPC) System, these SPF systems may be assigned to the following bricks (GS1, 2013):

Brick 10002456 Insulation -- Loose Fill/Spray Foam: Includes any products that may be described/observed as a form of insulation poured or blown into cavities to reduce heat loss. These products when applied correctly can virtually eliminate energy wasting air filtration in lofts. Excludes products such as rigid foam board.
 
Brick 10002692 Roofing Other: Includes any products that may be described/observed as Roofing/Exterior Trim products, where the user of the schema is not able to classify the products in existing bricks within the schema. Excludes all currently classified Roofing/Exterior Trim products.

This PP designation includes any SPF systems containing the specified diisocyanates, whether professional grade or [do-it-yourselfer (DIY)] products. Use of GPC Brick codes, where available, to identify California's PPs, may assist stakeholders in identifying such products. All SPF systems placed in the stream of commerce in California are classified as a PP, however, if they contain the specified diisocyanates, regardless of whether the manufacturer has assigned them to Brick 100024356 and 10002692 of the GPC.
 
Candidate Chemical(s) and respective hazard trait(s):

  • Generic methylene diphenyl diisocyanate (MDI) mixed isomers, respiratory toxicity;
  • 4,4'-methylenediphenyl diisocyanate, respiratory toxicity;
  • Toluene diisocyanates, mixed (TDI), respiratory toxicity, carcinogenicity;
  • 2,4-Toluene diisocyanate, respiratory toxicity, carcinogenicity;
  • 2,6-Toluene diisocyanate, respiratory toxicity, carcinogenicity; and
  • Hexamethylene-1,6-diisocyanate (HDI), respiratory toxicity.
  • Paint and varnish strippers and surface cleaners containing methylene chloride: This includes all paint and varnish removers, paint and varnish strippers, and surface cleaners that contain methylene chloride. This includes, but is not limited to, products described under the GPC System and assigned to "Brick 10002501(1)":

"...any products that may be described as a chemical substance designed to break down paint or varnish to facilitate its removal from a surface. These products may be designed for indoor or outdoor use, and can be used to remove varnish or paint from any chosen surface. This product category includes products such as Paint Stripper, Cleaning Solvents and Paint Solvents. This product category excludes products such as Paints, Special Purpose Paints, and Paint Additives/Enhancers, as well as Sandpaper and other Abrasives."

More information regarding the draft PPs is available online.

Next Steps

DTSC announced that it will hold a series of three public workshops in May and June 2014 to engage in a dialogue with stakeholders on the draft PPs. DTSC expects to initiate rulemaking to codify the Initial PP List in regulations in the latter part of 2014, and the process could take up to one year. DTSC states that interested stakeholders can provide input on the draft PPs by participating in the workshops or by "send[ing] your ideas directly to DTSC by accessing our website at http://www.dtsc.ca.gov/SCP." DTSC will hold a separate workshop in summer 2014 to discuss developing a PP Work Plan. The PP Work Plan will identify product categories DTSC will evaluate to identify product-chemical combinations over the following three years.

Commentary

The Initial PP List is the first concrete step under the SCPR to identify products for analysis to determine if there are "safer" alternatives. The three PPs included are arguably not big surprises, but are sure to garner attention and controversy. One major issue likely to be raised is that one or more of these PPs should be exempt from the SCPR because they are already being regulated by one or more federal and/or California State regulatory program. To demonstrate that a consumer product is exempt from the SCPR, it must be shown that the law or program: (1) addresses the same potential adverse impacts, potential exposure pathways, and potential adverse waste and end-of-life effects that could otherwise be the basis for the product being listed as a PP; and (2) provides a level of public health and environmental protection that is equivalent to or greater than the protection that would potentially be provided if the product were listed as a PP. Under its Toxic Substances Control Act (TSCA) Work Plan and Action Plan efforts, the U.S. Environmental Protection Agency (EPA) recently reviewed and released a draft risk assessment with regard to the use of methylene chloride in paint stripper products. EPA is also currently assessing TDCPP along with other flame retardants. Whether EPA's efforts, and other similar programs, meet the criteria for exemption will be one of the issues to be resolved.

Unless a company ceases to manufacture the PP prior to the date the product is included in the final PP list, there will be obligations under the SCPR for any manufacturer, importer, retailer, and assembler, ranging from conducting the AAs (for which manufacturers will be primarily responsible) to submitting notifications, monitoring developments, and/or complying with potential regulatory responses. These listings will also provide general guidance, experience, and insight into how DTSC intends to implement the SCPR for future PPs. Companies involved with consumer products in California are encouraged to evaluate DTSC's proposal carefully.

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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