DTSC Calls for Input on Next Potential Priority Products

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On November 15, 2016, the California Department of Toxic Substances Control (DTSC) held a webinar to provide an update on its progress and seek input from stakeholders regarding the selection of the next set of Priority Products under the Safer Consumer Products Regulations (SCPR). A recording of the webinar will be uploaded by DTSC to its workshops web page when available.

The webinar is the first step in implementing DTSC’s 2015-2017 Priority Product Work Plan. In the webinar, DTSC identified three areas of interest:

  • Potential Aquatic Impacts and Continued Uses of Nonylphenol Ethoxylates and Triclosan;
  • Potential Health and Safety Impacts of Chemicals in Nail Products; and
  • Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets, Rugs, Upholstered Furniture, and Their Care and Treatment Products.

Background documents with supporting information and specific questions from DTSC are available on CalSAFER, DTSC’s information management system for the SCP program (see links under individual topics below). Stakeholders are invited to submit comments through CalSAFER to respond to DTSC’s documents and/or share their own information. If a stakeholder believes a comment contains confidential business information, the stakeholder should contact DTSC directly rather than submitting through CalSAFER.

Background on SCPR and Priority Products

General background information regarding SCPR can be found on the DTSC website and on the Bergeson & Campbell, P.C. (B&C®) website.

A proposed list of three initial Priority Products was published in 2014. DTSC also published a 2015-2017 Priority Product Work Plan, which describes potential product categories from which Priority Products may be selected over the next three years. DTSC believes the Work Plan will allow it to implement stakeholder outreach earlier in the decision-making process. DTSC hopes information from stakeholders can be used to narrow the products that may be identified as Priority Products.

Nonylphenol Ethoxylates and Triclosan in Certain Cleaning Products, Clothing, and Personal Care Products

DTSC states it selected the potential aquatic impacts and continued uses of nonylphenol ethoxylates (NPE) and triclosan as a focus area because the topic encompasses product-chemical combinations that fall under DTSC’s policy priority on water quality. One of five policy priorities outlined in DTSC’s 2015-2017 Priority Product Work Plan, the policy priority on water quality includes products that “contain chemicals that may impact water or have been detected in water quality monitoring.”

DTSC states NPEs and triclosan are of particular concern because of the ease of their entry pathway into the drinking water system, identification of their presence in the water system, and the persistent, bioaccumulative, and/or toxic nature of certain of their transformation products. Additionally, DTSC states that NPEs and triclosan are used in multiple types of products and thus potentially have broader consumer exposure than other chemicals on the Candidate Chemicals list that may have aquatic impacts.  Other factors cited by DTSC in including aquatic impacts of NPEs and triclosan as a focus for selecting the next set of Priority Products include recommendations by various institutions, including the City of Palo Alto, the Orange County Sanitation District, and a science advisory panel on Chemicals of Emerging Concern in California’s aquatic ecosystems convened in 2010 by the Southern California Coastal Water Research Project; regulatory restrictions imposed in other jurisdictions; and market forces such as Walmart’s request to suppliers to phase out use of NPEs and triclosan from their products.

DTSC’s background document does not list specific NPE chemical substances, although all NPEs referred to in the background document are listed on the Candidate Chemicals list.  DTSC also identified potential products that may contain NPEs or triclosan, including laundry detergent, commercial and household cleaners, dish soap, soaps, deodorants, and cosmetics.

DTSC’s questions for NPEs and triclosan stakeholders (see page 5 of the background document) seek information on the following:

  • NPEs in cleaning and clothing products;
  • Triclosan product uses, removal, and substitution;
  • Aquatic hazards and detections of NPEs and triclosan; and
  • Other Candidate Chemicals or products

Comments on the background document and list of questions must be submitted by February 28, 2017.

Stakeholders also are invited to participate in future roundtable meetings and public workshops held by DTSC. A survey is available on CalSAFER that gives stakeholders an opportunity to state what meeting and workshop dates would be helpful and provide information on their area of expertise. Survey responses must be submitted by November 30, 2016. DTSC currently plans on holding a meeting/webinar on January 11, 2017, roundtable meetings during the first week of February 2017, and a traditional-style public workshop on February 23, 2017, in Sacramento, CA.

Certain Chemicals in Nail Products

DTSC states it selected nail products based on its long-standing interest in the specific product category dating back to 2011, when DTSC tested nail products claimed to be free of formaldehyde, toluene, and dibutyl phthalates and found that some products contained one or more of those chemicals. Other factors include exposure potential to salon workers, pregnant women, and children; public interest and market and regulatory phase-outs; and recently passed bills by the California legislature designed to improve the health, safety, and education of nail salon workers.

DTSC’s background document discusses formaldehyde, dibutyl phthalate, toluene, and triphenyl phosphate, and lists other Candidate Chemicals as possible chemicals to be identified when selecting Priority Products. The exact Candidate Chemicals under consideration have not been specified yet, however.

DTSC’s questions for nail products stakeholders seek information on the following:

  • Chemicals in nail products -- chemical presence, functional use, hazard traits, endpoints, and exposure information;
  • Alternative ingredients in nail products marketed as “green,” “safer,” or “free” of specific chemicals;
  • Product formulations and manufacturing information; and
  • Initiatives by manufacturers of nail products to improve their chemical safety.

Comments on the background document and list of questions must be submitted by February 28, 2017.

Stakeholders also are invited to participate in future roundtable meetings and public workshops held by DTSC. A survey is available on CalSAFER to provide stakeholders an opportunity to state what types of meetings and workshops would be helpful and provide information on their area of expertise. Information from the survey will help DTSC to better understand its stakeholders and how to engage more effectively. Survey responses must be submitted by November 30, 2016. DTSC plans on holding public workshops and/or stakeholder meetings in mid-January to mid-February.

PFASs in Carpets, Rugs, Upholstered Furniture, and Their Care and Treatment Products

DTSC states it selected PFASs in carpets, rugs, upholstered furniture, and their care and treatment products as a focus area because of DTSC’s concern about their environmental persistence.

DTSC states it is focusing specifically on the use of PFASs in carpets, rugs, upholstered furniture, and their care and treatment products since these products are relevant to most people  and PFAS-containing textile products may especially impact sensitive subpopulations such as children, who may play on carpets, and workers in carpet stores.

DTSC states its decision to focus on PFASs also is supported by existing actions taken by the U.S. Environmental Protection Agency (EPA), including its voluntary 2010/2015 Product Stewardship Program to reduce emissions and product content of perfluorooctanoic acid (PFOA) and its precursors and related higher homologue chemicals, and its published Significant New Use Rules (SNUR) related to PFASs, including one in 2013 that requires companies to report  all new uses of certain PFOA-related chemicals as part of carpets or to treat carpets. DTSC further believes a market shift is underway to use less hazardous, shorter-chain PFASs or remove PFASs from products altogether.

DTSC’s background document does not include a list of PFASs that DTSC is considering because the entire class of chemicals is currently being considered as a focus for the Priority Products program.

DTSC’s questions for PFASs stakeholders seek information on the following:

  • The use of PFASs in carpets, rugs, upholstered furniture and their care and treatment products;
  • Exposure data for PFASs in these products;
  • Hazard traits of “new” PFASs;
  • Life-cycle impacts; and
  • Non-fluorinated alternatives.

Comments on the background document and list of questions must be submitted by December 30, 2016.

Stakeholders are also invited to participate in future roundtable meetings and workshops held by DTSC. A public workshop has been scheduled for January 31, 2017, in Sacramento, CA. There is no stakeholder survey available because the date and type of meeting have already been set by DTSC. Roundtable meetings may be scheduled in addition to the public workshop; if so, DTSC will post dates on its workshops web page at least two weeks in advance.

Commentary

DTSC provided important information on its perspective and rationale for selecting the next round of Priority Products.  Interestingly, a common factor in all three cases appears to be market forces and regulations in other jurisdictions seeking to remove certain chemicals from certain products, thus allowing DTSC to “piggy back” on existing efforts.

DTSC has not in these cases clearly identified the exact Candidate Chemicals or products that could be selected, providing meaningful opportunity for interested stakeholders to review the information provided by DTSC and submit comments.  Important dates in this effort related to NPEs, triclosan, and chemicals in nail products include responding to stakeholder surveys by November 30, 2016, submitting comments on DTSC’s background documents and lists of questions by February 28, 2017, and participating in the next round of public workshops in January-February 2017.  For PFASs, stakeholders can submit comments by December 30, 2016, and participate in a public workshop scheduled for January 31, 2017.

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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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