On September 14, 2010, California Department of Toxic Substances Control (DTSC) proposed a regulation that would allow the Department to identify and prioritize chemicals of concern and regulate consumer products containing those chemicals. This proposal is intended to fulfill one of the six action points the California Environmental Protection Agency (Cal-EPA) identified as part of its Green Chemistry Initiative by requiring the design of goods with fewer to no adverse effects throughout the lifecycle of the product.

The proposal applies to responsible entities – manufacturers, distributors, importers, and retailers of consumer products that will be placed into the stream of commerce in California. Consumer products are broadly defined, have only a few specific exceptions,1 and include products used by individual consumers as well as companies and other entities. The proposed regulation would require the responsible entities to perform alternatives assessments for consumer products containing a priority chemical, with the goal of encouraging adoption of preferred ingredients, and may also require additional measures such as special labeling, end-of-life management, and engineered safety measures. Comments on the proposed rule must be received by DTSC on or before November 1, 2010. The proposed rule can be found by clicking on the following link:

dtsc.ca.gov/LawsRegsPolicies/upload/SCPA-Regs_APA-format-9-07-10-rev-9-12.pdf

What is the proposed regulatory process for establishing safer consumer products?

Three main steps are identified in the proposal:

  1. Prioritization: DTSC will first identify high priority chemicals based on factors, such as threat to public and environmental health, and place them on a "priority chemical" list. Once the chemicals have been prioritized, DTSC will identify high priority products, products which contain a priority chemical and pose a higher degree of threat to public and environmental health, and place them on a priority product list.
  2. Alternatives Assessment: If a consumer product is considered a priority product, an alternatives assessment must be completed, which examines whether there exist technologically and economically feasible alternatives to use of the priority chemical in the product. The proposal allows a de minimis exemption for priority products containing a "de minimis level 2 of the priority chemical. This de minimis exemption is not automatic: the manufacturer must request, and DTSC must grant, an exemption.
  3. Regulatory Response: If the priority product can be reformulated and the chemical concentrations in the alternative are below the levels specified by the regulation and/or the Department, and the alternative will not pose a significant threat, no further requirements must be met. If the priority product cannot be reformulated or exempted and continues to be a priority product, certain actions, called "regulatory response" requirements may have to be taken. These include, but are not limited to, consumer product information (labeling, information sheets), end-of-life management, and product sales prohibitions.

When will the proposed rule be finalized and take effect?

DTSC is required by legislation to promulgate the proposed regulation by January 1, 2011. The public comment period on the proposal will end on November 1, 2010, on which date a public hearing will be held. Afterwards, DTSC plans to review comments and consider changes to the regulation prior to submitting a final regulatory package to California Office of Administrative Law. DTSC expects the proposed regulation to be adopted prior to the end of 2010.