California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed inclusion of Spray Polyurethane Foam (SPF) Systems containing Unreacted Methylene Diphenyl Diisocyanates (MDI) as a Priority Product. These SPF systems are used for insulation, roofing, or sealants and raise safety concerns because of their widespread use by both professional contractors and “do-it-yourself” users for home repairs. This is the second Priority Product proposed for listing, following the inclusion of children’s foam-padded sleeping products with fire retardants. (See MoFo Client Alert, “California Unveils Its First Green Chemistry Regulations for Children’s Foam-Padded Sleeping Products with Fire Retardants,” at our Green Chemistry web portal page at http://www.mofo.com/green-chemistry).
The covered SPF products include two component systems that are mixed together before application and exclude one-component polyurethane foam materials sold in cans, pre‑fabricated flexible or rigid polyurethane foam and assembled products containing polyurethane foam and polyurethane products containing unreacted MDI that are applied by methods other than spraying.
The primary burden of complying with the new regulations will fall upon manufacturers of SPF systems. The initial notification requirements will require reporting to the California Department of Toxic Substances Control (DTSC), followed by a process of evaluation and analysis of alternatives to using MDI in the product. Once listed as a Priority Product, the responsible entity/manufacturer must within 60 days after the listing, unless DTSC specifies a later date in the Priority Products List, notify DTSC that its product-chemical combination is a Priority Product. Details of these requirements are discussed in our prior Client Alerts, see “California Announces First Consumer Products Subjected to New Green Chemistry Rules,” “Consumer Products ‘Either/Or’: California Issues Guidance on Alternatives Analysis for Safer Products,” and “California Issues New Guidance for Alternative Analysis for Safer Consumer Products,” which can be found at http://www.mofo.com/green-chemistry.
If the manufacturer fails to comply and DTSC provides notice of non-compliance on its website, the duty to comply will shift to importers, if any, and then to retailers and assemblers of the product. The end-users of the products, such as contractors or consumers, do not have a duty to comply with these regulatory requirements.
Based on how DTSC is progressing with its other Priority Product, we anticipate the regulations for SPF systems with unreacted MDI regulations will be finalized in 2018. DTSC is scheduled to hold a public hearing on the proposed regulations on May 16, 2017, and it will accept comments until then. A copy of the proposed regulations, Initial Statement of Reasons, and other related materials and additional useful information can also be found on our Green Chemistry portal web page.
Morrison and Foerster has worked with regulators and clients on the Green Chemistry Initiative since its inception and can provide additional detailed information about the Priority Product listings and the consequences to business.
Lois Miyashiro, an environmental analyst in the firm’s San Francisco office, assisted in the preparation of this client alert.