Environmental Law Alert: California Releases Draft Safer Consumer Products Rules

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The California Department of Toxic Substances (DTSC) released another draft of its proposed Safer Consumer Products regulations on July 27, 2012. It is the eighth draft issued in the past four years; the most recent was issued on June 23, 2012. DTSC will hold a public hearing on the July 27 draft on September 10, 2012, and is accepting written comments until 5 p.m. on September 11, 2012.

The proposed regulations are authorized under California's Green Chemistry legislation, adopted into the state's Health and Safety Code in 2008. They implement one of six policy recommendations of the California Green Chemistry Initiative Final Report (December 2008), which recommends "acceleration of the quest for safer products." To meet this objective, the Code directs DTSC to establish a process for identifying and prioritizing chemicals of concern (COCs) in consumer products and evaluating COCs and their potential alternatives to determine how to limit exposure or to reduce the level of hazard posed by COCs in consumer products.

The proposed regulations apply to all consumer products that contain a COC and are sold, offered for sale, distributed, supplied or manufactured in California, except those already under another regulatory regime (e.g., food, pesticides, prescriptions). The entities responsible for compliance include manufacturers, U.S. importers and retailers. Manufacturers are primarily responsible, importers are responsible if the manufacturer fails to comply, and retailers are responsible if the manufacturer and any importers fail to comply and are posted on DTSC's Failure to Comply List. Nonetheless, this imposes an implicit obligation on retailers in California to monitor the Failure to Comply List for all products they carry.

The proposed regulations implement a four-step process: (1) DTSC identifies COCs; (2) DTSC identifies and prioritizes Priority Products containing COCs; (3) responsible entities (generally manufacturers) perform an alternatives analysis for each Priority Product; and (4) DTSC issues regulatory responses for Priority Products or selected alternatives. If DTSC determines that a responsible party has not met its obligations, it will issue a notice of non-compliance. If the non-compliance is not remedied, DTSC will post the product and related information on its Failure to Comply List. DTSC may also initiate enforcement actions, including fines, for non-compliance.

Chemicals of Concern List

DTSC has identified existing lists with a total of approximately 1,200 chemicals that will be on its list of COCs. These lists include the Proposition 65 list and other lists of chemicals identified as hazardous or toxic by "authoritative organizations," including California and Washington state agencies, federal agencies and the European Union. DTSC may add chemicals to its COC list through a 45-day public comment process.

There is also a process for petitioning DTSC to add or remove a chemical from the COC list (or a COC/product combination from the Priority Products list). Petitioners may also request DTSC to add another existing list of chemicals to the COC list. DTSC will give higher priority to petitions submitted by federal or California state agencies.

Priority Products List

Before 2014, DTSC will develop a plan for identifying categories of products containing COCs to evaluate for the Priority Products list. To determine whether to list a product, DTSC will evaluate the public health and environmental impacts and potential exposure to any COCs. The evaluation of public health and environmental impacts will include consideration of sensitive subpopulations, environmentally sensitive habitats, and endangered and threatened species. The exposure evaluation will consider the market presence of the product and public and environmental exposure over the life of the product, including discharge and disposal of the product.

When a product is added to the Priority Products list, each responsible entity (generally the manufacturer) must develop, complete and submit a preliminary alternatives analysis within 180 days of the listing and a final analysis within one year. The alternatives analysis requires (1) identification of whether the COCs or substitute chemicals are necessary to meet the product's function, performance and legal requirements; (2) identification of alternatives that meet those requirements; and (3) comparison of those alternatives.

The final analysis must include a plan to implement the selected alternative, including any proposed regulatory responses.

Regulatory Responses

Based on the alternatives analysis, DTSC will require the implementation of regulatory responses to protect public health and the environment and maximize the use of alternatives of least concern where such alternatives are "technically and economically" feasible. When a Priority Product remains in commerce or an alternative product also contains COCs, the proposed regulations require manufacturers to provide related product information to consumers. DTSC may also impose use restrictions, product sales prohibitions, or engineering or administrative controls.

For more information, contact your Stoel Rives attorney or a key contributor.

Key Contributors

Louis A. Ferreira
Melissa A. Jones
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