California’s aggressive new green chemistry regulations went into effect on October 1, starting a chemical listing process that will lead to strict reporting requirements by next spring. The “Safer Consumer Products” regulations require companies to analyze the alternatives to potentially harmful chemicals used in their products and file reports with the Department of Toxic Substances Control (DTSC) or face civil and criminal penalties. If no safer alternative chemical can be found, the product may be pulled from the California market.
The DTSC is implementing the regulations in stages, starting with the release of two lists of chemicals for further consideration. The first list identifies hundreds of chemicals the DTSC may eventually target for mandatory alternative analyses by companies that use them in consumer products. The second, shorter list narrows the first down to about 150 chemicals the DTSC will study over the next six months as it develops a final listing of up to five “priority products” considered to pose chemical risk. Those products will be identified by April 2014, and companies involved in the manufacture or sale of the products will be required to submit alternatives analyses within 180 days.
Notable among the new requirements is the fact that, if a company makes a priority product, it must self-identify as manufacturers and submit complex alternatives reports completely unsolicited. DTSC requires initial notification by companies about priority products within just 60 days, though the more complex alternative assessment would be required at a later date. The regulations are already widely viewed as a substantial compliance challenge for small and medium-sized companies, which may lack the resources to accurately monitor DTSC listings and produce reports. Much like Prop. 65, California’s toxic chemical warning law, the Safer Consumer Products regulations subject virtually any entity in the chain of sale to liability, including manufacturers, importers, distributors and retailers. The only upside so far is that the priority product list will be small.
Until the priority products list is released next year, companies won’t be required to file notices or draft reports. Given the short notice period starting in 2014, however, manufacturers, distributors and retailers should discuss with their compliance staff monitoring updates from the DTSC and be prepared to act. This is also a good time to review agreements with other vendors in the supply chain to ensure they are both aware of the law and so that companies can consider reviewing or strengthening indemnification agreements.