California’s green chemistry law, known as “Safer Consumer Products Regulations,” is getting closer to affecting companies that do business in California. The regulations took effect on October 2013 with the goal of making it easier for consumers to know what chemicals are in the products they buy. The state agency that administers the regulations, the Department of Toxic and Substances Control (DTSC), has proposed three “Priority Products.” Companies that make these products would have certain obligations to meet or face penalties.
Part of the regulations require DTSC develop a list of chemicals that it uses as “Candidate Chemicals,” i.e., ones that the agency can take action against and regulate. To get on the DTSC’s radar, however, a company has to make a “Priority Product.” This is a combination of a product plus a chemical from the Candidate Chemical list. If a company makes a Priority Product, it has certain reporting obligations. These include that if the company intends to continue selling this product with this chemical it must perform an “alternative assessment” that provides the DTSC with scientific analyses as to whether there are safer chemical combinations to use in the subject product. The data will be made available publicly on the agency’s website. This process has not been rolled out yet so it is unclear how it will work in practice. Various timelines are provided to meet these obligations and the regulations give DTSC significant penalty power. The agency can fine companies for non-compliance with provisions and it can even order products not to be sold in California in extreme situations.
In March, the DTSC proposed three products to be the first on the Priority Product List. They are:
spray polyurethane foam containing unreacted diisocyanates;
children’s foam padded sleeping products containing tris(1,3-dichloro-2-propyl)phosphate or TDCPP; and
paint and varnish strippers and surface cleaners with methylene chloride.
The above are only proposals. DTSC will hold workshops and, after hearing from stakeholders, has the option to revise the list of products or to proceed and submit them for final approval. If you are involved in the production, distribution or sale of the above, it is important for you to be informed and understand how these regulations will work, what obligations you will have if these products stay on the list, and what reporting timelines and potential penalties will be involved. We are happy to discuss this with you.
The agency has the ability under the regulations to add additional products to this list annually. With a Candidate Chemical list of over 1,200 chemicals, it is easy to see that the product-chemical combinations encompass many industries. We will continue to monitor this process.