In adopting new green chemistry rules that will impact on the global supply chains of consumer product companies, California's Safer Consumer Product Regulations recently became law. This is the state's latest attempt to regulate the chemical composition of a broad range of consumer products. The regulations contain detailed procedures to implement California's Green Chemistry Initiative, requiring product manufacturers to examine whether they can replace existing chemical ingredients with alternatives that are deemed safer for consumers and the environment. For many consumer product companies, the regulations will require major investments in compliance and changes to product design planning and supply chain management.

The regulations(1) establish a four-step regulatory process in which the state Department of Toxic Substances Control:

  • identifies candidate chemicals of concern;
  • develops a list of priority products containing those candidate chemicals;
  • requires manufacturers of priority products to notify the department and analyse possible product alternatives; and
  • imposes a regulatory response, which can include a reformulation requirement or California sales ban. Although the regulations impose the 'principal duty to comply' on the manufacturer and secondarily on the importer, retailers must also comply (or cease ordering the priority product) if the manufacturer fails to do so.

The department also released an informational list of candidate chemicals of concern that are potentially subject to regulation. These chemical lists include a broad list of chemicals of concern and a shorter, more refined list of informational 'initial' candidate chemicals. This shorter list narrows the potential chemicals that, along with a product category, will be the first to be subject to the regulations.(2)

However, the final regulations still have an important missing piece. On August 28 2013 the California Office of Administrative Law disapproved two provisions of the regulations intended to provide protection for trade secrets of the regulated parties. In one instance, Section 69509.1(c) was disapproved because of impermissible vagueness in the 'substantive criteria' that the department will apply to determine whether to designate submitted materials as trade secrets. Section 69509.1(a) was also disapproved due to uncertainty over when the trade secret designation would be made and whether the department has discretion to decline to make such a determination. The department prepared revised regulations to address these objections, although these revisions have not yet been approved by the Office of Administrative Law.

Within six months, the department is expected to identify the initial five product/chemical combinations for regulation. At that point, the nation's newest experiment in consumer product regulation will go into full force.

For further information on this topic please contact Peter Hsiao at Morrison & Foerster LLP's Los Angeles office by telephone (+1 213 892 5200), fax (+1 213 892 5454) or email (phsiao@mofo.com). Alternatively, contact William F Tarantino at Morrison & Foerster LLP's San Francisco office by telephone (+1 415 268 7000), fax (+1 415 268 7522) or email (wtarantino@mofo.com). The Morrison & Foerster website can be accessed at www.mofo.com.

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Endnotes

(1) For a detailed discussion of the regulations, see "Next Generation of Consumer Product Rules: California Issues Draft Green Chemistry Regulations" and "California Revives Green Chemistry Initiative with Draft Regulations that Impact Manufacturers, Importers, and Retailers".

(2) The new regulations and chemical lists can be found at the Morrison & Foerster Green Chemistry webpage.