California Green Chemistry Initiative’s coming Priority Products list, and the DTSC Strategic Plan: what do they mean for you?

by DLA Piper

The highly anticipated next step in California’s Green Chemistry Initiative (GCI) is the planned April 2014 release of the list of Priority Products that will be first in the spotlight for chemical regulatory scrutiny, triggering compliance requirements with a 180-day deadline for any manufacturer whose product appears on that list. 

Consumer product companies handling potential Priority Products should be prepared to respond to this list as efficiently as possible.

The impending announcement of the Priority Products list is but one development in the California Department of Toxic Substance Control’s (DTSC’s) implementation of the GCI. The DTSC also recently released its Strategic Plan for 2014-2018, which provides useful intelligence regarding how the GCI will be implemented in the short- and long-term. 

For several years, the GCI, a fundamental shift in California’s approach to consumer product chemical regulation, has been at the forefront of regulatory concerns for manufacturers, distributors and retailers of consumer products in California.  These businesses are well served to pay close attention as the DTSC develops guidelines and regulations for various aspects of the GCI.

DTSC’s stated objectives are to change the way products are designated and manufactured, hold manufacturers responsible for the impacts of their products through the product life cycle, maximize public access to information on chemicals in consumer products and promote scientific and engineering innovation. 

To achieve these outcomes, DTSC’s Strategic Plan identifies three goals for the following four years:

1.    Implement the Safer Consumer Products regulations that will guide GCI compliance.  First, by issuing the initial list of Priority Products and product/chemical combinations in the spotlight, requiring analyses of alternative, less toxic chemicals.  Second, by developing specific regulatory guidance for how Alternatives Analyses are to be conducted.

2.    Develop a data system to support this implementation, including, for example, chemical and product information, notifications and reports submitted to or prepared by DTSC, and guidance documents.

3.    Provide information tools concerning chemical hazard traits and potential exposures that may be used by manufacturers to identify options for developing safer products and by consumers for making more informed purchasing decisions.

Two of the DTSC’s three stated GCI goals relate to sharing information among industry and consumers, in keeping with the statute’s objective of greater engagement of the consumer in buying choices.  Inevitably, much of the information gathered and shared about product contents, chemical risks and effective substitutes will be the subject of debate and controversy.  Further, businesses continue to have concerns about the submittal of trade secret and business confidential information to DTSC, for instance regarding proprietorial ingredient lists that could potentially be obtained by competitors. 

Manufacturers and those in the supply chain who wish to influence and prepare for implementation of information-sharing regulations should actively engage DTSC as these regulations are discussed and adopted, and actively plan for the ways that confidential manufacturing information may be shared and protected.

The Priority Products list is coming soon

Once DTSC releases its list of Priority Products in April 2014, manufacturers of any product on that list will need to complete the first stage of an Alternatives Analysis of the product within 180 days of the list’s release. 

The analysis must include a study of whether the chemical at issue is necessary to the product, and must identify and compare the chemical to possible substitutes and any potential impact of the substitutes.  Manufacturers of chemicals that are already on the Candidate Chemical List should be gathering information on the manufacture, assembly and safe disposal of their products.  This will expedite any required study of these processes during a potential Alternatives Analysis compliance process.

Although any consumer product with a chemical component set out on the Candidate Chemical list is a potential candidate, it is rumored that the initial list  will include toys and products for personal care and household cleaning.  DTSC Director Debbie Raphael stated that nail polishes containing toluene (a possible reproductive hazard), carpet adhesives with formaldehyde (a carcinogen) and fluorescent light bulbs with mercury are specifically under consideration. 

The coming months are sure to produce many questions and concerns surrounding compliance with this new regulation.  Consumer product businesses that stay alert and engaged in the regulatory process, and prepared for GCI implementation, will benefit.

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.

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