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California Releases Revised Proposal for Green Chemistry Consumer Product Regulations

Beveridge & Diamond, P.C., October 16, 2009

The California Department of Toxic Substances Control (“DTSC”) is seeking comments on a revised Proposal for the State’s Green Chemistry Safer Alternatives Regulations.  The revised Proposal (available here) identifies specific categories of consumer products that would be covered under the regulation and sets aggressive timetables for manufacturer compliance with proposed hazard characterization and alternatives analysis requirements.  DTSC will accept public comments on the revised Proposal during the Public Workshop scheduled for October 21, 2009 in Sacramento, California (agenda available here).  DTSC will accept written comments on the revised Proposal until November 4, 2009.

Green Chemistry Regulations Would Initially Target Specific Product Categories

The revised Proposal would apply to all consumer products made available for use in California that fall into one of the following categories: 

  • products designed for use by infants and children;
  • products designed for use in K-12 schools;
  • personal care products;
  • clothing, linens and textiles;
  • furnishings;
  • cleaning products;
  • products designed to release fragrances or scents;
  • products designed to prepare, store or dispense food;
  • products designed or reasonably anticipated to release chemicals during intended use by consumers or after disposal; 
  • products containing a designated chemical of concern; and
  • any chemical designated as a chemical of concern.

As specified in California’s Green Chemistry framework law, the following items are excluded from the definition of consumer product (and therefore exempt from the consumer product regulations):  food, prescription drugs, medical devices, dental amalgam, mercury lighting, and pesticides.[1]

Proposed California Green Chemistry “Chemicals of Concern”

The revised Proposal identifies chemicals of concern as (1) any chemicals or chemical ingredients included on one of twenty nine authoritative body lists; (2) any chemical or chemical ingredient with a hazard characteristic listed in the Proposal that falls within product categories (1)-(9) as outlined above; and/or, (3) sixteen named chemicals, including: arsenic, cadmium, hexavalent chromium, lead, mercury, uranium, bisphenol A (BPA), diethylhexyl phthalate (DEHP), diisodecyl phthalate (DIDP), diacetyl, triclosan, sulfur dioxide, nitrogen trioxide, methyl isocyanate, perfluorooctanoic acid (PFOA), and perflourooctane sulfonate (PFOS).  Readers should consult the revised Proposal for additional information regarding the referenced authoritative body lists and the proposed chemical hazard characteristics.

Proposed Consumer Product Manufacturer Obligations

The revised Proposal would require consumer product manufacturers (including any person who imports, manufactures, assembles, produces, or packages/repackages/re-labels under their own brand name) to obtain data necessary to evaluate the chemicals under specified hazard criteria.  This data would be required within one year from the effective date of the regulations for “existing chemicals” (chemical or chemical ingredients contained in existing products).  For “new chemicals” or new uses of an existing chemical in a consumer product, the data needed to evaluate the chemical ingredient would need to be generated before the consumer product was put on the market in California.  The manufacturer would then be required to evaluate each chemical with respect to the listed hazard criteria and maintain documentation supporting its conclusions.  The proposed hazard criteria include toxicity, serious eye damage, germ cell mutagenicity and genetic toxicity, reproductive toxicity, carcinogenicity, endocrine disruption, respiratory sensitization, skin sensitization, bioaccumulation, acute aquatic toxicity, and substances hazardous to the ozone layer.

In addition to the examination of chemicals for hazard criteria, a manufacturer of consumer products containing one or more chemicals of concern would be required to prioritize the chemicals of concern within their products (as Priority 1, 2, or 3 chemicals); make hazard characterization data available to their transferees or direct consumers; and conduct an alternatives analysis (including life cycle impacts) for chemicals of concern in their products.

Proposed Regulatory Response Actions

Under the revised Proposal, if a safer alternative is not implemented after completion of an alternatives assessment, a manufacturer of a consumer product containing a priority chemical of concern could be subject to a range of response actions.  Response actions would include notification/labeling requirements; chemical prohibitions; end-of-life management; and/or notification of other agencies depending on specific impacts such as greenhouse gas emissions, water quality impacts, ecotoxicity risks, or worker exposure.  Additional response actions, requiring DTSC authorization, could include requirements for additional data; restrictions on chemicals of concern; research and development; or green chemistry funding.

Progress and Opportunities to Comment

Progress on the Safer Alternatives Proposal is accelerating on an aggressive time table, and there is a limited window of opportunity open now to comment on the revised Proposal.  DTSC plans to share its anticipated timeline for release of the draft regulations at the Public Workshop on October 21.

For additional information or guidance regarding California Green Chemistry, please contact Laura Duncan (lduncan@bdlaw.com); Ken Finney (kfinney@bdlaw.com); or Ryan Tacorda (rtacorda@bdlaw.com).


[1]  See California Health & Safety Code § 25251(e). 

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