California’s New “Safer Consumer Products” Law – Prop. 65 on Steroids

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For companies struggling to understand or contend with Proposition 65 (Prop. 65) litigation, things are about to get even more complicated in California with the soon-to-be-finalized regulations implementing the “Safer Consumer Products” legislation. The 2009 “Safer Consumer Products Law” (AB 1879, SB 509) seeks to transform the way manufacturers, importers and retailers do business in the state, with the end goal of creating a comprehensive list of toxic chemicals used in consumer products and then eventually replace them with “safer” and “greener” alternatives. First, the regulations will apply to “a product or a part of the product that is used, bought or leased for use by a person for any purpose” that contains a “candidate chemical” and placed in the stream of commerce here.  This includes goods sold through mail order, Internet and traditional stores, as well as manufacturer “giveaways” and promotional items.  It can also be one part of a finished good, such as a tire on a car or insulation on a cable wire.  Second, the regulations place no distinction on whether the product is intentionally sold in California.  In other words, regardless of a manufacturer’s awareness or desire to have its product sold here, products with certain chemicals in them will be subject to these regulations.  There are certain exemptions to this requirement, including food, medical devices and drugs, and dental implants.  The regulations also exclude repair work.  The latest version does not, however, exclude the manufacture of products here for sale in other states (a protection the earlier draft of the regulations did have).

 

For everyone not exempted, defined as a “responsible entity”  (manufacturers, importers, assemblers and retailers), reporting will be required if they make a product the department identifies as a “priority product.”  The Department of Toxic Substances Control (DTSC) is required to identify no more than five priority products in its initial list after the regulations are finalized.  A “priority product” is defined as a combination of a “chemical of concern” and a product prioritized as being of high concern and for which alternative analyses must be conducted by the responsible party.  Confused yet?  DTSC must identify these products through the administrative rulemaking process.  One example of a prioritized product might be “infant clothing.”  If DTSC established that infant clothing containing Chemical X is a priority product, for example, then reporting requirements would kick in if Company Z makes baby clothing containing Chemical X.  The company would need to report to the department that its babywear qualifies as a priority product.  And the regulations require this reporting regardless of the quantity of the chemical in the clothing, even if just trace amounts.  DTSC will publish on its website those entities that do not comply with these requirements and has the ability to impose fines and penalties for noncompliance. If the responsible party makes or sells a priority product, it must conduct an alternatives analysis within six months of the product’s listing unless the amount of the chemical is below an established threshold set by DTSC.  Then the party must prepare a final analysis report no later than a year after the department accepts the preliminary analysis.'

 

Once a company submits its alternatives analysis, DTSC has various regulatory responses available and is charged with choosing the one that has the greatest level of protection to the public and environment.  The options are broad and include requiring new labeling, restricting exposure to certain chemicals in products at issue, and even prohibiting the use of a chemical in a product altogether, effectively banning the sale of a product in the state.  The regulations have been through several revisions and several sets of public comment.  It is expected they will go live sometime later this year.  We will provide updates as they are available.  In the meantime, it would be a good idea for companies with sales and business in California to become familiar with this law.