California Adopts Nationally Ground-Breaking Safer Consumer Product Regulations

by Holland & Knight LLP
Contact

California's Green Chemistry Initiative blazes a new trail for consumer products in the United States, establishing a comprehensive approach aimed at reducing — over time — exposures to hazardous chemicals commonly found in a range of products. On August 28, 2013, California adopted the ground-breaking rules, with the Office of Administrative Law's official approval of the Safer Consumer Product (SCP) Regulations submitted by the state's Department of Toxic Substances Control (DTSC). The new SCP regulations — which implement the Green Chemistry statute (AB 1879, codified at California Health & Safety Code Sec. 25252 et seq.) — are set to take effect on October 1, 2013. While other states have adopted or are considering "Green Chemistry" initiatives, California has the only program that extends beyond children's products to the broader universe of any and all consumer products.

"Priority Products" Will Be Identified by April 2014

The SCP regulations are a game-changing new program with broad implications for companies throughout the supply chain for consumer products placed into the stream of commerce in California, including products sold, offered for sale, distributed, supplied, or manufactured in or for use in California as a finished product or as a component in an assembled product. The new regulations require DTSC to identify its initial list of candidate chemicals by October 31, 2013. The next major milestone in the implementation of California's Green Chemistry Initiative will be DTSC's identification of up to five "priority products" (by April 1, 2014) that will be subject to the SCP regulations during the first few years of implementation. The proposed list will be subject to a public review and comment period of at least 45 days. Companies considered "responsible entities" for priority products will be subject to extensive requirements, ranging from submittal of various notifications to the preparation of a detailed evaluation of alternatives. The responsible entity is typically the manufacturer, but the SCP regulations also impose requirements on importers, assemblers and retailers.

DTSC Requires Specific Notifications and Alternatives Analyses for Priority Products

Once DTSC has finalized the list of priority products, responsible entities will have only 60 days to submit between one and three types of notifications to DTSC:

  1. confirmation that the business is a responsible entity for a priority product
  2. notification that the product contains the chemical of concern at a level lower than the specified threshold and thereby eliminating the alternatives analysis requirement for the product
  3. whether the entity intends to remove the product from sale, remove the chemical from the product, or replace the chemical in the product

Within 180 days after the list of priority products is finalized, a responsible entity must submit a detailed alternatives analysis for their product, unless they have certified that their product is below the threshold level. Alternatives analyses are subject to public review and comment, and responsible entities may be required by DTSC to address certain public comments in their final alternatives analysis document. A complex array of information must be submitted by a responsible entity asserting a claim of trade secret protection over any other information contained in documents required by the SCP regulations.

DTSC Determines the Appropriate Regulatory Response

After reviewing the alternatives analysis, DTSC will select a "regulatory response," which may require submittal of additional information to DTSC, notification to the consumer regarding the chemical of concern, restrictions on use, administrative controls, further research regarding alternative ingredients, end-of-life disposal requirements, or even a ban on the product.

DTSC has not yet revealed what products it is considering, but possible candidates include carpet adhesives containing formaldehyde, household cleaning products, personal care products such as nail polish, or products such as furniture containing flame retardants. DTSC will review and revise the priority products list at least every three years.

Companies Should Take Steps Now to Prepare for Compliance

Manufacturers, retailers, importers and assemblers of consumer products for sale or distribution in California should take steps now to prepare themselves for this complex and consequential new regulatory program. These steps include paying attention to and participating in the priority products listing process, as well as examining and restructuring agreements with partners in their supply chain to establish clear allocation of responsibilities and procedures for complying with the SCP regulatory requirements. Even companies with no operations or products sold in California will want to watch what happens, as California's program may well be a harbinger of what will follow in other states.

The Green Chemistry statute and SCP regulations give DTSC broad enforcement authority, including the right to publish a list of non-compliant entities on a public website, and to impose civil and criminal penalties of up to $25,000 per violation.


To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.