Keller and Heckman – California's Green Chemistry Initiative/Safer Consumer Products Regulations

California Assembly Bill 1879 (Cal. Health and Safety Code sec. 25252, et seq.), an important statutory basis for California's Green Chemistry Initiative, attempts to reduce or eliminate the use of hazardous materials through an all-inclusive approach that considers how hazardous substances can be reduced or eliminated during product design, development, and manufacture; consumer product use; and ultimate product reuse, recycling, and disposal. California's Department of Toxic Substances Control ("DTSC") has taken an important step toward implementation of California's Green Chemistry Initiative with the most recent release of the draft Safer Consumer Products Regulations (the "Proposed Regulations"). The Proposed Regulations have gone through several iterations, but as of April 2013, they create the proposed framework for identifying candidate chemicals, priority products, chemicals of concern, alternative chemicals and conducting alternative analyses.

The Proposed Regulations establish a four-step process to identify "safer consumer products." The first step is for DTSC to establish an immediate list of "candidate chemicals," composed of chemicals listed by 23 authoritative bodies on the basis of exhibiting at least one of eight hazard traits: carcinogenicity, reproductive toxicity, mutagenicity, developmental toxicity, respiratory sensitivity, endocrine disruption, neurotoxicity, and/or persistent bioaccumulative toxicity. This "list of lists" is expected to number approximately 1,200 chemicals.

The next step requires DTSC to prioritize product/candidate chemical combinations to develop a list of "priority products" for which alternatives assessments must be conducted. When establishing a priority product, DTSC must find that (1) there must be potential exposure to the candidate chemical in the product and (2) there must be the potential for exposures to contribute to or cause "significant or widespread adverse public health and/or environmental impacts." California will conservatively begin with an initial list no more than five priority products. Once the candidate chemical becomes the basis for the listing of a priority product it becomes a "chemical of concern" for that particular product.

The third step requires "responsible entities" - product manufacturers, importers, assemblers, and/or retailers - to inform DTSC that their product has been listed as a priority product and perform an alternatives analysis for the product/chemical of concern combination to identify how to limit the environmental and/or public health impacts of the chemicals of concern in the priority product.

The fourth and final step is for DTSC issue a "regulatory response" designed to protect public health and/or the environment. DTSC's response may include (1) requiring supplemental information from the responsible party; (2) requiring addition information be provided to consumers; (3) imposing product use restrictions; (4) banning the product; (5) requiring engineering or administrative controls; (6) requiring an end-of-life management program; and (7) when no viable safer alternative is found, requiring the manufacturer to initiate a research and development project or fund a related challenge grant design to find a safer alternative.

The Proposed Regulations are in draft form and subject to revision before they are finalized. Nevertheless, they should provide a fairly accurate look at the upcoming implementation of Assembly Bill 1879. The text of the Proposed Regulations can be found at DTSC's website.

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