California Proposes Inaugural List of Priority Products to Be Regulated by the Safer Consumer Products Regulations

Author: Peter Duchesneau 

Today, after years in the making, the California Department of Toxic Substances Control (DTSC) released its list of the first group of Priority Products it proposes to regulate under the California Safer Consumer Products regulations (commonly known as “Green Chemistry”):

• Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates
• Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl) phosphate or TDCPP
• Paint and Varnish Strippers, and Surface Cleaners with methylene chloride

The groundbreaking regulations, which took effect October 1, 2013, establish a process for DTSC to identify and prioritize consumer products containing chemicals of concern that warrant evaluation of safer alternatives and provide for the potential imposition of product or chemical restrictions by DTSC.

Obligations are not immediately triggered for businesses involved with manufacturing, importing or selling the proposed products. DTSC indicates that it may take up to two years for the draft list of Priority Products to be finalized and adopted. The list will be finalized and adopted as part of a formal rulemaking process for each Priority Product, which could take up to a year. The rulemaking process will involve an opportunity for public comment, external scientific peer review, CEQA compliance, an economic impact analysis by the California Environmental Policy Council, and a public hearing. Moreover, prior to initiating formal rulemaking, starting in May and June 2014, DTSC will hold public workshops throughout California on the proposed Priority Products.

Once the list is finalized, manufacturers, importers and retailers of the Priority Products will have obligations under the regulations. These will include notifying DTSC of the manufacture or sale of the products and participating in the Alternatives Analysis process to consider safer alternatives to the designated chemicals of concern in the products. While manufacturers have the primary obligation to perform the alternative assessments, importers and retailers will be responsible in the event manufacturers of their products do not comply.

Businesses that sell the designated products should consider participating in the rulemaking process. Businesses should carefully review the basis for their product’s listing. DTSC has expressed its belief that the products are not already adequately regulated by other entities. It points out that while some state and federal regulatory programs may address one or more impacts of concern, the Safer Consumer Products regulations address additional impacts throughout the entire life cycle of a product. Even if DTSC is not persuaded to drop a product from its list, the rulemaking process may provide an opportunity to establish important clarifications to the regulation of the products, such as chemical thresholds.

All consumer product businesses, whether or not involved with the proposed Priority Products, should stay tuned to the Safer Consumer Products regulations. By following the development of the regulations, consumer product businesses will be better positioned to manage their products, if and when it becomes necessary to do so. While the time for compliance is still months, if not years away, businesses with proposed Priority Products need to pay close attention, consider participating in the rulemaking process, and start planning for what lies ahead.