Environmental, Land and Natural
Resources Alert
June 2010
Author:
Edward P. Sangster
ed.sangster@klgates.com
+1.415.249.1028
Other Contact:
Nicholas A. Leibham
Tsunami Warning: California’s “Regulations
for Safer Products” Are on the Way
A tsunami is a wave that washes over lands far distant from the geological event that
caused it. So it will be with California’s “Regulations for Safer Products,” which
will shortly be released for public comment. These regulations will have far
reaching impacts in markets throughout the United States and beyond.
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The Green Chemistry Initiative
The Regulations for Safer Products will comprise one part of California’s Green
Chemistry Initiative. The Green Chemistry Initiative surfaced in April 2007 as a
directive from the Secretary of California’s Environmental Protection Agency to its
subsidiary agencies and boards. The Green Chemistry Initiative was described at the
time as a “preemptive strategy to stop toxic substances before they contaminate the
environment and our bodies.” The Secretary directed agencies to place new
emphasis on enforcing existing statutes and regulations, and to develop new
regulations focused on eliminating exposures, rather than regulating wastes.
The official motto for the Green Chemistry Initiative succinctly, if quixotically,
states its ultimate goal: “cradle to cradle” regulation. The motto signifies the
intention of California regulators to compel the design of chemical products and
processes that will reduce or eliminate the use of hazardous substances and the
generation of hazardous wastes.
In 2008, the California Legislature empowered the Green Chemistry Initiative by
enacting Assembly Bill (“AB”) 1879. AB 1879 requires California’s Department of
Toxic Substances Control (“DTSC”) to enact regulations by January 1, 2011 to
identify Chemicals of Concern in consumer products, and then to impose life cycle
regulation on consumer products containing such chemicals.
Regulations for Safer Products
Release of the regulations required by AB 1879 for formal public comment is
imminent. The DTSC recently released an outline of draft regulations that it called
“Regulations for Safer Products.” The DTSC has stated that draft regulations will be
issued for comment “in the very near future.” The outline reveals regulations that
will impose comprehensive testing, reporting, justification, and labeling
requirements for the use of any Chemical of Concern contained in a consumer
product. In so doing, the regulations will inject governmental regulators into the
product design and manufacturing process to an unprecedented extent.
According to the DTSC’s outline, the Regulations for Safer Products will apply to all
consumer products manufactured, sold, offered for sale, or imported into California,
except for foods, pesticides, and a few other types of narrowly defined products.
DTSC regulatory activities will start by selecting “Chemicals under Consideration,”
and then narrowing those to “Chemicals of Concern.” The first list of Chemicals of
Environmental, Land and Natural Resources Alert
Concern will only include chemicals that are (1)
included on California’s list (currently 21 pages
long) of chemicals believed to cause cancer or
reproductive toxicity, (2) classified by the European
Union as having mutagenic effects, or (3)
determined by the U.S. EPA to be persistent in the
environment, bioaccumulative and toxic.
Subsequent lists of Chemicals of Concern will not
be limited to chemicals having such classifications.
The DTSC will next develop a list of consumer
products and product categories that contain
Chemicals of Concern. From these, the DTSC will
select “Priority Products” based on the relative threat
to public health or the environment, prohibition on
landfill disposal in California, and something
vaguely referred to in the outline as “availability of
resources.”
Alternatives Assessments
Manufacturers of Priority Products will be required
to perform “Alternatives Assessments.” The
Alternatives Assessments will start with the
submission of a required work plan, which must
consider product reformulation, substitution of the
Chemical of Concern, product and manufacturing
process redesign, and substitution of another product
for the current product.
Companies performing Alternatives Assessments
will be required to explain, among other things, the
function of the consumer product, the function of the
Chemical of Concern, the useful life of the product,
the materials and resources consumed to
manufacture the product, public health effects,
environmental impacts (including end-of-life
disposal) and economic impacts. The manufacturer
will then be required to identify and study
alternatives to continued use of the Chemical of
Concern. In other words, the manufacturer will be
required to analyze available alternatives and justify
why alternatives deemed to be “safer” should not be
required.
The regulations will empower the DTSC to take a
wide range of actions in response to information
contained in Alternatives Assessments. These will
range from no further action to outright bans of
products, and will include restrictions on use (short
of an outright ban), end of life management of the
product, product labeling to warn consumers, and
compulsory, additional research regarding the
Chemical of Concern and product alternatives.
Conclusion
It appears that the DTSC envisions a process in
which it will deal with the most threatening
chemicals and products first, and then expand its
regulatory reach to an increasing number of less
hazardous chemicals and products. Manufacturers
of Priority Products can expect to incur substantial
costs preparing Alternatives Assessments and
disruptions caused by regulatory action resulting
from the Alternatives Assessments.
Although the Regulations for Safer Products will
only apply to the California market, the size of that
market means that most companies having a
presence in the United States market for consumer
products will need to comply. Persons and
companies to be affected by the regulations should
consider taking an active role in commenting on
draft regulations and, when enacted, each step in the
regulatory process, including development of the
list of Chemicals of Concern and product
prioritization.
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Environmental, Land and Natural Resources Alert
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June 2010
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