It isn’t easy to change the mindset of a capitalistic society. Although the science of ecology dates back more than 150 years and has its roots in ancient Greece, society as a whole has only become more environmentally aware in the last 40 some years. It remains a struggle to make people aware that, really, we are not the only organisms on the planet. So let’s start by making sure that we aren’t using any secrets, including trade secrets, to contaminate our little place in the universe.
One of the latest efforts to minimize the effects of man on the world’s diverse, delicate ecosystems is “Green Chemistry,” which encourages products and processes that reduce use and generation of hazardous substances. To further the goals of Green Chemistry, the California “Safer Consumer Product (SCP) Regulations” became law October 1, 2013.
Sounds great, doesn’t it? If a hydro-fluorocarbon (HFC) and a chlorofluorocarbon (CFC) can do the same job (e.g., the air conditioning in your car), and HFCs do not destroy the ozone layer like CFCs do, why shouldn’t the government force you to use HFCs? Unfortunately, implementing such change isn’t as easy as a mere change in an acronym letter, and there are a few additional items in the rules that make full compliance, uh, uncomfortable.
One of the rules under the SCP is that there can be no secrets from the government. That means you must disclose your trade secrets in detail to the State of California. Don’t worry, though, the government won’t tell anyone your trade secrets. And there won’t be any computer hacking or leaks either.
True, the SCP regulations have a process to protect trade secrets from public disclosure. It seems to be a “tell us your secret and hope for the best” approach, however.
If you have a trade secret that falls within the SCP regulations, you must first make a written claim to the Department of Toxic Substance Control (DTSC) that you have a trade secret. You tell the DTSC in writing exactly what your trade secret is and provide the DTSC evidence why it should remain a trade secret. The DTSC reviews your application and evidence and makes a ruling on your request.
If the DTSC decides — for whatever reason — that the information does not rise to the level of trade secret protection . . . they deny your request. If you disagree, you have to sue the State of California within 30 days of the denial to maintain the confidentiality of the information. If you don’t file, the DTSC makes your trade secret information public.
If you do file a preliminary injunction or for declaratory relief to protect your information from disclosure, you have to disclose all of your trade secret information in court, but you are allowed to request redaction of certain information. Redaction, schmedaction . . . there are no rules stating that the court must keep your information confidential.
Worse yet, at least 30 other states are considering similar regulations.
Disclosing your trade secrets may be necessary under California’s SCP and similar laws around the country. The path to keeping your trade secrets confidential while becoming more ecologically sound just became a lot more difficult.
As a famous amphibian puppet says, “It’s not easy being green.”