April 1, 2019
By Dennis Raglin
What chemical law is flying under the radar but has the potential to drastically change a variety of products and entire industries, and potentially cost a bundle in compliance costs? California’s Safer Consumer Products program. After a slow start, California’s potentially game-changing green chemistry regulations are taking off and more products and industries are now in the crosshairs and subject to enforcement.
First, the background. In 2013 California established Safer Consumer Products regulations to serve as a green chemistry regulatory framework. This was the result of the 2008 Green Chemistry Law enacted by the state legislature with the goal of reducing harmful chemicals to humans and the environment. It required the state Department of Toxic Substances Control (DTSC) adopt regulations to identify and prioritize certain chemicals in consumer products. There are three parts to this. Part one is identifying the chemical of concern. The regulations give DTSC wide authority to utilize many national and international sources to identify and populate a list of what it claims is the worst of the worst chemicals in terms of hazard. These are chemicals that are listed by various national and international groups as carcinogens or reproductive toxicants, among other risks. Part two is the listing of a product that is made with the concerning chemicals. This is where “Priority Product” comes in. DTSC has the authority to identify “Priority Products” that utilize a chemical or chemicals of concern and is then able to regulate these chemical-product combinations. Part three is then whether supposedly less hazardous chemicals can be included in the making of the product to make it safer for people and the environment. This includes requiring an alternatives analysis be prepared by manufacturers of this product to determine if safer alternative chemicals could be used to make the product. The department has the ability to then require such a reformulation and, in the extreme case not yet exercised, can order the product banned for sale in California.
The regulations require DTSC to publish a Work Plan every three years. The first, the 2015-2017 Plan, contained three products that were adopted as Priority – spray polyurethane above, paint and varnish strippers and surface cleaners containing Methylene Chloride and children’s foam-padded sleeping products containing the flame retardant TDCPP. The department dropped further action on the children’s sleep products as it concluded the industry had already addressed the issue. The Methylene Chloride product became effective January 1, 2019 meaning these manufacturers were required to confirm they make the product to DTSC. The next step will be DTSC establishing a date whereby manufacturers must submit alternative analyses. Spray polyurethane foam systems with Methylene diphenyl diisocyanate (MDI) was initially listed in 2018 but a trade group launched and lost an appeal to the agency. Hence, with the appeal over the process moves forward and manufacturers must notify DTSC by April 26, 2019.
Things are picking up now with the 2018-2020 Priority Work Plan. DTSC has selected the following categories from which it will propose future Priority Products for evaluation:
a. Beauty and personal care products
b. Cleaning products
c. Household, school and workplace furnishings
d. Building products and construction materials
e. Consumable office, school and business supplies
f. Food packaging
g. Lead-acid batteries
Proposed Priority Products currently include: (a) nail; products containing toluene; (b) (Perfluoroalkyl and polyfluoroalkyl substances (PFAs) in carpets and rugs (c) laundry detergents containing Surfactants nonylphenol ethoxylates (NPEs) and (d) paint and varnish strippers and graffiti removers containing N-methylpyrrolidone (MNP).
Alphabet soup abbreviations aside, the regulations mandate that DTSC can only designate Priority Products from the categories proposed in the Work Plan, meaning the above will be the universe of the next batch of proposed Priority Products through 2020 and then this process will begin again for the 2021-2024 Plan. These categories are so broad, however, this listing is of little use as industries await the next move by the agency, as well as the next batch of proposed Products. Activity by the department is now accelerating and the reach of these regulations will become far reaching and touch more businesses. Counseling and advice is recommended to ensure compliance and understand the potential impact on products and business, and appeals, if necessary.
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