DTSC Lists First Three Draft Priority Products Pursuant to Safer Consumer Products Regulations

In August 2013, after five years of joint effort among manufacturers, consumers, environmentalists, and the Department of Toxic Substances Control (DTSC), the Safer Consumer Products regulations (Regulations), previously known as the Green Chemistry Initiative regulations, were approved by the California Office of Administrative Law and went into effect on October 1, 2013. The regulations require manufacturers or other responsible entities to seek safer alternatives to certain chemical ingredients in widely used products. The DTSC describes the Regulations as “a preventive approach to keeping dangerous chemicals out of everyday products and giving consumers greater confidence that the products they buy ultimately will be safe.…For industry, these regulations will provide a more predictable process for ensuring product safety, and offer a competitive advantage for innovators who see an opportunity in the growing market for toxic-free or toxic-reduced products.”

The Regulations call for the DTSC to develop a list of chemicals that are candidates for elimination based on a variety of hazardous traits as determined by authoritative scientific organizations, and their history of exposure potential. The most recent candidate chemicals list can be found here. The DTSC must then develop a group of product types, known as “priority products,” containing at least one of those chemicals. When a candidate chemical is a basis for a product being listed as a “priority product” it becomes designated as a “chemical of concern.” Once the priority products are identified, manufacturers of the products will have to conduct an “alternatives analysis” for the product and the chemicals of concern in the product to determine how best to limit exposures to, or the level of adverse public health and environmental impacts posed by, the chemicals of concern in the product. The alternatives analysis requires manufacturers to answer two questions: (1) is this chemical necessary; and (2) is there a safer alternative. If no other safer, nontoxic ingredient is feasible, the DTSC has the ability to apply one of several regulatory responses, ranging from product labeling to sales prohibition, which would reduce risk or phase out the chemical. The findings of each manufacturer’s alternatives analysis report will ultimately determine what regulatory response, if any, DTSC may impose.

In March 2014, the DTSC announced the first draft list of priority products to be evaluated under the Regulations. Three classes of product-chemical combinations were identified: (1) spray polyurethane foam systems containing unreacted diisocyanates; (2) children’s foam padding sleeping products containing the flame retardants Tris (1,3-dichloro-2-propyl) phosphate or TDCPP; and (3) paint and varnish strippers, and industrial-strength surface cleaners containing methylene chloride. Despite identification of the first priority products, manufacturers of these products are not yet required to conduct alternatives analyses. It is not until the draft list of priority products is finalized by DTSC and adopted into regulation that manufacturers have to notify DTSC and begin the alternatives analysis process. The adoption into regulation is done in conformance with California’s rulemaking law – the Administrative Procedure Act (APA). The APA process includes a 45-day public notice and comment period and allows DTSC up to one year from the public notice date to finalize the regulations. The March 2014 announcement is not the start of the formal rulemaking for the three listed priority products. DTSC indicates that it expects to initiate rulemaking to codify the initial priority products list into regulations in late 2014 and that this could take up to a year. DTSC updates the status of the rulemaking for these three initial priority products and any future identified priority products here.