New California regulations awaiting final approval may soon require businesses to study alternatives to certain chemicals used in their products, and in some cases, redesign products or pull them from the market. The California Department of Toxic Substances Control (DTSC) just released its final version of proposed “Safer Consumer Products” regulations, which would require manufacturers and retailers to consider greener alternatives in their products to so-called “Chemicals of Concern.” The regulations could start affecting companies as early as this month once the state’s administrative department gives the final okay.
Over the past five years, DTSC has gone through 10 drafts and several rounds of public comments, but the final version of the green chemistry scheme it has now submitted to the Office of Administrative Law (OAL) for final approval remains virtually unchanged from the last draft released in April. In essence, these regulations will require manufacturers, importers, assemblers and retailers to: (a) notify the DTSC if a “Priority Product” contains a “Chemical of Concern” (the regulations allow the department to define both which products and which chemicals will be at issue) within 60 days of the product’s listing by DTSC, or the product’s placement in the stream of commerce; (b) submit a preliminary “alternatives analysis” within 180 days of the listing; and (c) produce a more thorough final analysis within the following 12 months.
Under these rules, if a company cannot find a suitable alternative for a listed Chemical of Concern, the Priority Product must be pulled from the California market. As an example, let’s say Company X makes baby car seats. Let’s also say that Chemical Z is a candidate chemical from the list of such chemicals the department has identified. Now, under the regulations, let’s assume that the DTSC has identified as a product-chemical combination car seats containing Chemical Z. That makes this a Priority Product. Under the new regulations, all defendants in the stream of commerce related to that baby seat would have obligations under the law. They would have a duty to notify DTSC that the baby seat contained Chemical Z and, if they intended to continue selling it in California, would need to prepare and submit an alternatives analysis looking for a less dangerous chemical than Chemical Z. Failure to comply could result in audits, fines, and civil and criminal penalties. The burden will be on companies and their compliance departments to consistently monitor DTSC’s website for the latest candidate chemicals and priority products.
The state OAL must now decide whether to approve these final regulations by August 29. Assuming they are approved, DTSC will develop a list of about 1,200 candidate chemicals to choose from – based on state and global standards within the following 30 days. From that list, it will compile and publish a list of five Priority Products that contain one or more of the candidate chemicals, and make that list available for public review before it takes effect.
While the green chemistry regulations may not have the final, technical approval, they are basically greenlighted now and the next step will be the DTSC identifying Chemicals of Concern and Priority Products. Once it does that, companies doing business in California will have to start reporting if they make a defined priority product. The short 60-day turnaround for notification spelled out in the regulations will require manufacturers and retailers to have a forward-thinking strategy in place.