In the News

California's Proposed "Green Chemistry" Regulation Could Broadly Affect Consumer Product Makers, Sellers

Jul 13, 2010

The California Department of Toxic Substances Control (DTSC) posted a "Draft Regulation for Safer Consumer Products" on June 23, 2010. Announcing the release of the draft regulations, DTSC's Acting Director said, "study after study shows that consumer products are not safe," and predicted that the California regulation would shift the way that government, industry, and consumers think about products that end up in homes. DTSC is expected to finalize regulation by the end of the year.

The premise of California and other Green Chemistry initiatives is to impose reporting, labeling, and other obligations on consumer product manufacturers to achieve the goal of eliminating certain substances from use in consumer products.

Key elements of California's 61-page draft regulation include:

Applicability to all chemicals that exhibit a hazard trait and are reasonably expected to be contained in consumer products made available for use in California, unless 1) the chemical is regulated by another governmental entity throughout the life cycle of the chemical, or 2) there are no exposure pathways by which the chemical might pose a threat to public health or the environment in California.

Chemicals of Concern (COC) will be limited initially to those that cause cancer or reproductive toxicity and are on the Proposition 65 list, mutagens as classified under REACH, and persistent toxic and bioaccumulative materials as determined by U.S. Environmental Protection Agency (EPA).

Products of Concern will be chosen based on the relative degree of threat posed by the product due to the COC that is contained in the product, to public health or the environment based on consideration of the two page list of factors detailed in the regulation.

Priority Products will be identified from the list of Products of Concern, along with de minimis exemptions; however, the draft establishes that under no circumstances shall a de minimis exemption be allowed for chemicals, materials, or substances manufactured or engineered at the nanoscale, which contain nanostructures, or are considered to be a nanomaterial.

Notification: Any manufacturer of a listed Priority Product will be required to notify retailers who sell the Priority Product in California and the Department that its consumer product is a Priority Product and include a statement as to whether the manufacturer will seek the Departments concurrence that the COC is below the de minimis level. The regulation assumes that the COC will be in the Priority Product and there is a requirement that the manufacturer submit either a written description of the manufacturing process to show why it would not be present or a chemical analysis that shows that it is below the de minimis level.

An alternatives assessment is required to determine whether another chemical can be substituted for the chemical of concern if the COC is above the de minimis level in a Priority Product. The alternatives assessment must be performed by an assessor who is certified by the State.

Regulatory action may include a request for additional information, a requirement that the manufacturer provide product information for consumers or provide an end of life take-back program, or result in a product sales prohibition.

The Green Chemistry initiative will ultimately require all consumer product manufacturers to be more aware of the chemical makeup of their products, necessitating the commitment of significant additional resources to support their products. The regulation, for example, include consumer labeling obligations to advise consumers of all of the following information: the manufacturer's name, the brand name, the COCs contained in the product, sensitive sub-populations who should avoid contact with the product due to the COC, safe handling procedures both during the useful life and end of life disposal, and a website address where consumers can obtain more information. The regulations also include a recall obligation under certain circumstances for products that contain COCs.

The regulation, press release, conceptual framework behind the proposal, and related documents can be found at here.

Green Chemistry proposals are spreading to other states. Makers of consumer products should consider carefully the implications and obligations involved.