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February 12, 2018

DTSC Identifies Scope of Future Regulation Under California's Green Chemistry Program

Seller Beware: Consumer Protection Insights for Industry

On February 8, 2018, the California Department of Toxic Substances Control (DTSC) published its 2018-2020 Draft Priority Product Work Plan. The Draft Work Plan identifies the product categories that DTSC will evaluate over the next three years as potential "Priority Products" under California's green chemistry program. The Draft Work Plan can be found here.

California's Safer Consumer Products Initiative, also known as the "Green Chemistry" Initiative, delegates broad authority to DTSC to identify product-chemical combinations, or "Priority Products." Manufacturers of such products must then conduct an Alternatives Analysis to assess whether safer alternatives exist. Depending on the outcome of the Alternatives Analysis, DTSC may issue a "Regulatory Response," including use restrictions, product sales prohibitions, end-of-life product management, among others.

The Draft Work Plan includes the following product categories:

  1. Beauty, Personal Care, and Hygiene Products
  2. Cleaning Products
  3. Household, School, and Workplace Furnishings and Décor
  4. Building Products and Materials Used in Construction and Renovation
  5. Consumable Office, School, and Building Supplies
  6. Food Packaging
  7. Lead-Acid Batteries

The Draft Work Plan includes several product categories that were not included in the 2015-17 Work Plan, such as Food Packaging and Lead-Acid Batteries. DTSC selected food packaging because of studies demonstrating a correlation between the ingestion of packaged foods and exposure to certain chemicals such as phthalates, bisphenol A, and perfluorochemicals. Lead-acid batteries were selected as a result of 2016 legislation requiring them to be listed. The Draft Work Plan also eliminates two previously included product categories, Clothing and Fishing and Angling Equipment, but the Draft Work Plan does not provide an explanation for their exclusion.

Because DTSC essentially has a "blank check" to regulate or even ban the sale of Priority Products, companies that manufacture products that are sold in California and within the scope of the Draft Work Plan should pay close attention to future developments and consider engaging in the process. DTSC is accepting written comments on the Draft Work Plan until March 9, 2018 and will be holding a public hearing on February 26, 2018. DTSC is expected to release a final 2018-20 Work Plan later this year.

© Arnold & Porter Kaye Scholer LLP 2018 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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