March 14, 2014

California Proposes First Products to Be Targeted for Green Chemistry Treatment

Seller Beware: Consumer Protection Insights for Industry

On March 13, 2014, California took the next step in its green chemistry program for consumer products when the Department of Toxic Substances Control (DTSC) proposed three initial Priority Products:

  1. Paint and varnish strippers, and surface cleaners containing methylene chloride. In the Priority Product Profile, which provides the rationale for listing this product, DTSC reports that stripping agents containing methylene chloride have been responsible for numerous worker deaths and connected to consumer, "do-it-yourselfer" deaths as well. The marketing of methylene chloride-based paint strippers is already banned in the EU.
  2. Spray polyurethane foam (SPF) systems containing unreacted diisocyanates. These products are used in the construction industry for insulation, roofing, sealing, and filling of voids and gaps, and are also used for other purposes, including use in "the creative arts."
  3. Children's foam-padded sleeping products containing TDCPP (tris(1,3-dichloro-2-propyl) phosphate). Products included within this category include nap mats with polyurethane foam, juvenile product pads in soft-sided portable cribs, infant travel bed foam, portable infant sleeper foam, playard foam, play pen foam, bassinet foam, nap cots with foam pads, car bed foam pads, and foam sleep positioners. This chemical is listed under California's Proposition 65 and has been the subject of numerous lawsuits.

Formal Rulemaking to Come Later in 2014.

These product-chemical combinations could become the initial focus of scrutiny under California's Safer Consumer Products regulations if their listing is finalized through a formal rulemaking process. In releasing this initial list, DTSC took pains to say that its publication does not commence formal rulemaking, which DTSC anticipates initiating in "the latter part of 2014" and which could take up to a year. You can check the status of the Priority Product listing process here. As outlined in a previous post, once a Priority Product is formally listed, responsible entities will have to notify DTSC within 60 days if they manufacture, assemble, import, or sell one of the Priority Products, and then will have to prepare an Alternatives Analysis within 180 days.

Some Surprises on the List.

The three products proposed on March 13 are much more focused than expected, given earlier rumors that the state would target toys and personal care products, as well as household cleaning products (see our earlier post). Instead, DTSC appears to be concentrating initially on products that are not as widely used and which manufacturers are already reformulating to avoid the targeted chemicals. For example, at least 14 manufacturers of foam in childcare products have already agreed to reformulate these products to avoid the chemical at issue, as part of a settlement of Proposition 65 litigation.

Work Plan Will Provide Basis for Identifying More Priority Products.

Nevertheless, manufacturers, importers, assemblers, and retailers of other consumer products cannot rest easy. Later this year (by October 1, to be exact), DTSC must publish a "work plan" that will identify product categories from which DTSC will draw additional Priority Products over the next three years. And it is possible that the work plan could come even earlier than October 1. While DTSC took several years to draft and finalize regulations implementing the green chemistry laws signed by Governor Arnold Schwarzenegger in 2008, the agency has moved quickly since finalizing the regulations—first by beating the regulatory deadline for issuing the initial list of Candidate Chemicals and now by proposing the initial list of Priority Products ahead of schedule.

We will keep you posted as DTSC proceeds with its next steps in this potentially wide-ranging regulatory program. Given the national market for most consumer products, and requirements of many national retailers that products supplied to them be legal for sale in all 50 states, it is likely that California will soon be setting de facto national standards for chemical safety in consumer products.

© 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.


Brian K. Condon
Brian K. Condon
Senior Counsel
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