Earlier this year, the California Department of Toxic Substances Control (DTSC) released its revised proposed Safer Consumer Products (SCP) regulations, and a public comment period has expired as of February 2013. The law, anticipated to become effective as early as July 2013, is intended for regulators to identify consumer products for sale or distribution in California containing hazardous chemicals and to prompt producers to consider safer alternatives to those chemicals.

When effective, the SCP regulations will implement laws passed in 2008 known as the “California Green Chemistry Initiatives”, establishing an expansive, complex and potentially costly new regulatory regime conceivably applicable to virtually any “consumer product” offered for sale or distribution within California containing one or a combination of approximately 1,200 hazardous chemicals.

Under the regulation, DTSC will establish a list of approximately 1,200 “Candidate Chemicals” with recognized environmental or toxicological risks, such as carcinogens, reproductive toxins, neurotoxins, or other pollutants. Initially, DTSC will then select only five “Priority Products” (such as, for example, paint thinner, wood adhesives or latex gloves) determined to contain Candidate Chemicals, which will then be referred to as a “Chemical of Concern” or a “COC.” Producers of these Priority Products, referred to as the “Responsible Entity” (which can include any party placing a Priority Product in the stream of commerce in the state), must then evaluate ways to remove the COC from the product at issue, evaluate possible alternatives to the COC, or opt to halt distribution of the product in California entirely – all demonstrated to the satisfaction of the DTSC. The final phase of the regulatory process may include appropriate response by DTSC, which could include consumer notification of the presence of a COC or an approved alternative, restrictions on use, administrative controls, disposal rules at the end of the product life cycle, or mandates concerning alternative ingredients research.

The SCP scheme is intended to commence with regulatory action as to only five Priority Products initially, with additional products to attain such a designation, and the attendant regulatory scrutiny, in future years on a rolling basis.

Priority Product Selection Criteria

Because virtually any consumer product containing one or more of approximately 1,200 Candidate Chemicals may be named as a Priority Product subject to the onerous and extensive requirements of the SCP regulation, the selection criteria for Priority Product listing has been one of the most controversial components of the new law. Under the proposed regulation, the factors to be considered by DTSC in composing its Priority Product list include: (1) potential adverse impacts posed by the COCs within the consumer product; (2) comparison of the potential adverse impacts relative to other products being evaluated, with products demonstrating a higher risk accorded higher priority; and (3) the scope of other California and federal regulatory requirements to address and provide adequate protections of public health and environmental concerns. Furthermore, a product that is listed as a Priority Product that meets certain specified criteria set by DTSC may be exempt from certain requirements that an alternative chemical ingredients analysis be performed, if a Responsible Entity submits the relevant notification of exemption within a specified period of time after a Priority Product is listed by DTSC.

DTSC’s enforcement powers include publication of noncompliant responsible entities on its website, as well as pursuit of enforcement actions under the California Health and Safety Code, which can include criminal and civil penalties of up to $25,000 per violation. As mentioned above, there is no provision for a private “citizen suit” provision within the current proposed regulation.

Implementation Timetable

The official list of Candidate Chemicals will be published on the effective date of the SCP regulation, which is expected as early as July 2013. The initial proposed Priority Product list will be published for review and public comment no later than 180 days after the SCP regulation becomes effective. The public comment period will then last for at least 45 days, with required technical and other disclosures required of responsible parties for Priority Products due within 60 days after the proposed list of Priority Products is finalized.

Additional information and current status of the new law is available from California DTSC on its website, available at http://www.dtsc.ca.gov/SCPRegulations.cfm.