New California Regulations Lead the Way In Protecting Consumers From Toxic Chemicals
by Ronald White, 10/7/2013
The nation's federal toxic chemicals law, the Toxic Substances Control Act (TSCA), has a number of significant shortcomings. Among other things, it does not generally require companies to test chemicals for possible health effects before using them in consumer products. And though the federal Consumer Products Safety Improvement Act limits the amount of lead and bans certain chemicals known as phthalates in children's products, it doesn’t restrict the use of other toxic substances in consumer goods.
To respond to this gap in addressing the use of toxic substances in consumer products, California adopted new regulations on Oct. 1 designed to create safer substitutes for hazardous ingredients in products sold in California. The regulations are an outgrowth of California’s Green Chemistry Law, specifically Assembly Bill 1879 which mandated the Safer Consumer Products Regulations and authorized the implementation of the Safer Consumer Products Program.
Development of a list of potentially harmful chemicals by California’s Department of Toxic Substances Control (DTSC) based on the work already done by other authoritative organizations).
Evaluation and prioritization of combinations of toxic chemicals and the products they are used in to develop a list of “Priority Products” for which analyses must be conducted to see if safer alternatives are available. A chemical that is the basis for a product being listed as a Priority Product will be designated a Chemical of Concern (COC) for that product and any alternative considered or selected to replace that product.
Responsible entities (i.e., manufacturers, importers, assemblers, and retailers) notify the Department of Toxic Substances Control when their product is listed as a Priority Product. Manufacturers (or other responsible entities) of a product listed as a Priority Product must then perform an analysis of alternatives 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 in the product.
The Department identifies and implements regulatory responses designed to protect public health and/or the environment, which maximize the use of acceptable and feasible alternatives of least concern. DTSC may require regulatory responses for a Priority Product (if the manufacturer decides to retain the Priority Product), or for an alternative product selected to replace the Priority Product.
Candidate Chemicals/Priority Product Selection
The regulations place responsibility on responsible entities that produce consumer products for informing the DTSC that their products contain a chemical that is listed on a forthcoming list of “priority products”. On September 26 the DTSC published an informational list of approximately 1,200 individual and groups of “candidate chemicals” derived by the DTSC from lists developed by other “authoritative organizations.” Manufacturers can voluntarily review whether their products contain any of the chemicals on the list to evaluate whether safer chemicals are available and to avoid “regrettable substitutions” in which one toxic chemical is substituted for another.
A list of 164 initial Candidate Chemicals that meet the criteria for the Initial Priority Products List was developed from this larger list of chemicals based on both the toxicity profile of the chemical and information on the potential for human exposure. The DTSC will then evaluate and prioritize product/Candidate Chemical combinations to develop a list of “Priority Products” for which alternatives analyses must be conducted. By April 1, 2014 the DTSC will make available for public review and comment up to five products proposed on an Initial Priority Products List.
As has been the case for a variety of environmental health concerns (e.g., air pollution, chemical hazard assessment), California has taken a national leadership role in developing a regulatory program to reduce public exposure to toxic chemicals in consumer products, a major source of public exposure to toxic chemicals. As California gains experience with this new program, other states will be looking to develop similar programs. However, industry is expected to challenge California’s program and concerns remain that preemption of state chemical regulations will be included as part of efforts to reform the Toxic Substances Control Act, the nation’s outdated and generally ineffective legislation for chemical regulation.
Update 3/19/14: On March 13, the California Department of Toxic Substances Control (DTSC) released its first three draft Priority Products under the Safer Consumer Product Regulations:
- Children’s sleeping mats containing polyurethane foam and the flame retardant TDCPP (chlorinated tris);
- Spray polyurethane foam systems containing unreacted diisocyanates (used in home insulation); and
- Paint, varnish strippers and surface cleaners containing methylene chloride
This initial Priority Products list is the first set of product-chemical combinations to be named for consideration by DTSC to be regulated under the Safer Consumer Products regulations. Finalizing the initial Priority Products list could take up to two years. The proposed initial Priority Products list will be finalized via adoption of regulations for each Priority Product. Before initiating formal rulemaking, the DTSC will hold public workshops on the proposed Priority Products and the entire rulemaking process may take up to one year. Requirements for manufacturers to notify DTSC and begin the Alternatives Analysis process do not start until the Priority Product regulations are finalized.
While just the first step in implementing this groundbreaking program, this action represents an important milestone in efforts to reduce consumer exposure to toxic chemicals.
Update 9/23/14: As part of its Safer Consumer Products Regulation (SCPR) under California’s Green Chemistry Initiative, the Department of Toxic Substances Control (DTSC) on September 13, 2014 issued its Draft Priority Product Three-Year Work Plan.
The September 2014 Work Plan identified seven categories of products that DTSC will assess in its effort to list additional priority products three years from now. Those categories are:
- Beauty, Personal Care and Hygiene Products (body wash and soaps, cosmetics, nail and hair care products, lotions, etc.),
- Building Products—limited to paints, adhesives, sealants, flooring,
- Household, Office Furniture and Furnishings—limited to those treated with flame retardants and/or stain resistant chemicals,
- Cleaning Products,
- Fishing and Angling Equipment, and
- Office Machinery—e.g., printer inks, specialty paper, toner cartridges.
In selecting product categories to include in the Work Plan, DTSC considered a range of criteria, including the potential for exposure, significant adverse impacts, and end-of-life effects, as well as the availability of information, other regulatory programs, and safer alternatives. Moreover, selection of several of the product categories appears to have been motivated by prolonged dermal exposure (e.g., Beauty, Personal Care and Hygiene Products, Clothing), while exposure to chemicals indoor air was an important factor in the selection of Building Products and Cleaning Products. Collectively, the product categories are associated with a wide range of potentially harmful “candidate chemicals,” including phthalates, triclosan, volatile organic compounds, azo dyes, and flame retardants.
Unlike the DTSC’s March 2014 announcement, the Draft Priority Product Work Plan does not identify specific priority products or “chemicals of concern.” Instead, the DTSC will identify specific products from the seven categories identified in the Work Plan that contain chemicals found on the candidate chemicals list. In identifying priority products from those seven categories, DTSC will select products for regulation based on an assessment of six factors listed in the SCPR, including the potential for adverse impacts, the extent of exposure, and the availability of safer alternatives. However, DTSC notes that it is unlikely that it will identify more than 10 priority products per year.