Manufacturers, Importers and Retailers Must Take Action Following DTSC Reveal of Priority Products

by Allen Matkins

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Once again, California is on the leading edge of environmental programs. An approaching April 1, 2014, deadline for publication of a “Priority Products List” under “Safer Consumer Products Regulations” that first went into effect on October 1, 2013, has manufacturers, importers, and retailers awaiting news of which products will be selected for further scrutiny.

The regulations were developed by the California Department of Toxic Substances Control (“DTSC”) and will be implemented in a series of steps over the next few years.

Step 1: Establish Candidate Chemicals List.

The “Candidate Chemicals” list is a list of chemicals that exhibit a “hazard trait and/or an environmental or toxicological endpoint.” This list is available here and includes about 1,200 chemicals, many of which are widely used in consumer products. The regulations also provide a mechanism for DTSC to add more chemicals to the list.

Step 2: Publish Priority Products List.

By April 1, 2014, DTSC will identify a short list of up to five “Priority Products” that contain a chemical on the Candidate Chemicals list for which there is a risk of human or environmental exposure. DTSC has not yet provided any indication of which specific products it might include on the Priority Products list. After the initial Priority Products list is published, DTSC must finalize the list through formal rulemaking, a process that may take up to a year.

Step 3: Notification and Preliminary Alternatives Analysis.

Once the Priority Products list is finalized, companies that manufacture, import, or sell a Priority Product (“responsible entities”) have 60 days to notify DTSC of its status as a “responsible entity” and 180 days to develop and submit to DTSC a preliminary “Alternatives Analysis” report. In the report, responsible entities must evaluate different ways of making the product to limit exposure to Candidate Chemicals. An Alternatives Analysis may include reducing or eliminating the chemical from the product entirely, or possibly constructing or formulating the product in a different way so that, even if the chemical is still used, the exposure risk to consumers and the environment is reduced. Because the analyses will likely contain valuable trade secret information about how the products are made and about the availability or viability of any potential reformulations, this disclosure requirement raises a host of questions regarding what companies must disclose, what they can withhold, and what the government will do to safeguard trade secret information.

Step 4: Final Alternatives Analysis.

After DTSC approves a preliminary Alternatives Analysis report, responsible entities will have one year to develop and submit a final report.

Step 5: Regulatory Responses.

Once DTSC has received the final Alternatives Analysis report, it will use that information to require implementation of “regulatory responses.” It is too early to tell what those responses will be, but they might include requiring companies to start making products in alternative ways to reduce chemical exposure or even banning products that manufacturers decline to reformulate.

Although no one knows yet which products will be identified as “Priority Products” requiring Alternatives Analysis, some major manufacturers have already taken proactive steps to remove Candidate Chemicals from their products. For example, Johnson & Johnson recently announced that it has completed the process of removing formaldehyde-releasing preservatives and reducing traces of 1,4 dioxane from all of its baby products.

Interestingly, Johnson & Johnson never added formaldehyde or 1,4 dioxane as ingredients in their products; those chemicals were byproducts of the manufacturing process. Johnson & Johnson’s experience illustrates the fact that even companies that never intentionally use Candidate Chemicals need to think about whether those chemicals might still end up in their products.

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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