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February 14, 2014

California's Green Chemistry Law Targets "Priority Products" For Regulation

Seller Beware: Consumer Protection Insights for Industry

This post is the first in a series on California's Green Chemistry law.

October 1, 2013 marked the beginning of an unprecedented effort by the State of California, through regulation, to try to eliminate or replace a broad range of chemicals in consumer products used in the state. The regulation is billed as the first of its kind in the world, intended to reduce human and environmental exposures to toxic chemicals. The California Department of Toxic Substances Control (DTSC) will implement the regulation, but much of the burden will fall on a broad spectrum of industries.

Priority Product List Due April 1, 2014. DTSC will initially propose up to five "Priority Products" for regulation by April 1, 2014, considering the hazards and exposure potential of various product-chemical combinations. These proposed Priority Products will be available for public review and comment before DTSC adopts them for regulation.

Alternatives Analysis from Manufacturers and Others. Once adopted, manufacturers, assemblers, importers, and retailers will be required to (1) notify DTSC within 60 days if they are responsible for manufacturing, assembling, importing or retailing one of the Priority Products, and (2) prepare an "Alternatives Analysis" within 180 days that will require a substantial amount of research and analysis. The Alternatives Analysis must include study of whether the chemical is necessary in the product, identify and compare alternatives, and assess the viability and impacts of those alternatives.

State Regulatory Response. DTSC will then propose a regulatory response, ranging from no action to labeling, modification, or replacement of chemicals in the products. Each step of the process has procedures for public notice and comment, requests for further information, exceptions and alternative means of compliance, petitions for adding or excluding chemicals or Priority Products from the list, enforcement, or potential regulatory or legal challenges.

What Will be on the List of Priority Products? Although DTSC initially listed more than 1,200 chemicals of concern, it has created a pared-down list of less than 200 chemicals or groups that might be included in the initial listing of Priority Products. The list includes such common chemicals or groups as aluminum, carbon monoxide, formaldehyde, gasoline, jet fuel, mineral oils, and nitrates+nitrites. The five initial Priority Products DTSC chooses will contain one or more chemicals from the pared-down list. Rumored potential candidates for the initial list include toys, personal care products, and household cleaning products. The Los Angeles Times reported that the Director of DTSC stated nail polish containing toluene (a possible reproductive hazard), carpet adhesive with formaldehyde (a carcinogen), and fluorescent light bulbs with mercury were specific products under consideration. Companies that would like to consider whether their products are potential candidates for initial regulation should review the chemicals on this list.

Next Steps. Implementation of the regulations will play out in 2014 and beyond, and is sure to present both burdens and opportunities for industry, as well as uncertainty over whether and how companies can comply with the regulations. We will continue to report here on developments with DTSC's implementation and issues of concern contained in the regulations.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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