California Issues Updated Proposal to Identify and Find Alternatives to Toxic Chemicals in Consumer Products

Lawrence  -  03:14 PM

The state of California has been a pioneer in the development and implementation of forward-looking environmental and consumer product safety policies and has gone to great lengths to fill the vacuum left by the federal government on many issues of concern. This has included various efforts to reduce the use of hazardous chemicals in a range of consumer goods as well as the establishment of a mandatory recycling programme for electrical and electronic products. The California Department of Toxic Substances Control on 27 July took another step to strengthen the state’s environmental and public health credentials by unveiling a proposal that would require companies to identify and find alternatives to toxic chemicals in consumer products. DTSC initially issued a draft proposal in December 2011 and developed a more formal version taking into consideration the thousands of comments submitted by a diverse group of stakeholders and other interested parties. DTSC will hold a public hearing on the formal proposal on 10 September and those interested in submitting input may do so by 11 September.

The proposal would establish a list of about 1,200 chemicals of concern (down from 3,000 chemicals in the draft proposal) based on the work already done by other organisations and would specify a process for DTSC to incorporate additional chemicals to this list. Five hundred additional chemicals currently used only in pesticides and drugs could be added to the list in the future if they are used in products that are not excluded under Section 25251 of the California Health and Safety Code. DTSC would be required to evaluate and prioritise products that contain chemicals of concern to develop a list of priority products for which an “alternatives assessment” would have to be conducted. The proposal specifies that the first list of priority products will contain no more than five product-chemical combinations. Prior to January 2016 DTSC would list a product as a priority product only if the product is being listed on the basis of one or more chemicals of concern that meet both of two criteria: (i) the chemical is listed on the list of lists specified in the regulations because it exhibits one or more of seven hazard traits (carcinogenicity, reproductive toxicity, mutagenicity, developmental toxicity, endocrine disruption, neurotoxicity and/or persistent bioaccumulative toxicity); and (iii) the chemical is listed on one of the exposure indicator lists identified in the regulations for water quality, air quality or biomonitoring.

The proposed regulations would require responsible entities (manufacturers, importers and retailers) to notify DTSC if their product is listed as a priority product, and DTSC would post that information on its Web site. Manufacturers or other responsible entities of products listed as priority products would be required to perform an “alternatives assessment” for the product and the chemical(s) of concern in that product to determine how best to limit potential exposures or the level of potential adverse public health and environmental impacts posed by the chemical of concern. DTSC would also be required to identify and impose regulatory responses to protect public health and the environment and maximise the use of feasible alternatives of least concern. DTSC would have the authority to require regulatory responses for a priority product/chemical of concern (if the manufacturer decides to retain the priority product) or for an alternative product/chemical selected to replace the priority product.

DTSC would issue a priority product work plan by January 2014 that identifies the product categories that will be evaluated to identify products to be added to the priority products list during the next three years. The regulations specify conditions under which DTSC may revise the work plan subsequent to its issuance. Subsequent work plans would be issued no later than one year before the three-year expiration date of the current work plan. In addition, DTSC would hold one or more public workshops to discuss candidate products prior to issuing the proposed priority products list for further public review and comment.

The proposed regulations would establish a process for any individual or organisation, including federal and other California state agencies, to petition DTSC to add or remove a chemical to/from the chemicals of concern list or a product/chemical combination to/from the priority products list. Petitions may also be submitted to DTSC requesting that an entire existing list of chemicals be added to the list of chemicals of concern.

The following products would be exempted from the regulations.

  • Products exempted under Section 25251 of the Health and Safety Code, namely dangerous prescription drugs and devices; dental restorative materials; medical devices; packaging associated with dangerous prescription drugs and devices, dental restorative materials and medical devices; food; pesticides; and products used solely to manufacture a product exempted by law.
  • Products manufactured, stored in or transported through California solely for use out of state.

As opposed to the draft proposal, the formal proposal no longer includes an upfront exemption from the regulations for products regulated by other laws that provide protections with respect to the same public health and environmental adverse impacts and exposure pathways that are addressed in the proposal. Instead, this factor would be taken into consideration during the product prioritisation process. In addition, the proposal no longer includes a mandate for how frequently DTSC must review and revise the chemicals of concern list.

DTSC indicates that the principal duty to comply with the requirements of the regulations that apply to responsible entities would lie with the manufacturer. If the manufacturer does not comply, the importer, if any, then would have a duty to comply. A retailer would be required to comply with the regulations only if the manufacturer and importers (if any) fail to comply and only after this information is posted on the failure to comply list on DTSC’s Web site. A manufacturer or importer would be able to opt out of complying with the requirements by demonstrating to DTSC that the product is no longer being sold, offered for sale, supplied, distributed or manufactured in California. Likewise, a retailer would be able to opt out by ceasing to order the product and providing a notification to DTSC.

Consequences of non-compliance would initially entail the issuance of a notice of non-compliance to the manufacturer and importers. If the non-compliance is not remedied, the product and information concerning the product would be placed on the failure to comply list maintained on DTSC’s Web site. DTSC may conduct audits to determine compliance with the requirements of the regulations pertaining to alternatives analyses, regulatory responses, and various notifications and information submittals. DTSC may also conduct enforcement actions, which may include the imposition of fines and penalties against responsible entities for failure to comply with the regulations.

DSTC will also maintain on its Web site a response status list with information as to how a responsible entity or a chemical manufacturer/importer has or has not responded to a request for information from the agency. Moreover, DTSC will post on-line a safer consumer products partner recognition list that identifies persons that have voluntarily provided the agency with information that advances the quest for safer consumer products.

According to DTSC Director Debbie Raphael, her agency views the proposal as a “two-for-one initiative.” It achieves public health and environmental benefits by seeking to reduce the use of toxic chemicals and provides a “significant boost” to California companies “into markets that are rapidly expanding.” Raphael believes that the regulations “will stimulate growth in those markets” and move California “toward a higher level of environmental protection.” A DTSC press release also highlights that the proposal was developed in co-operation with business groups, health care advocates, environmentalists and other parties.

Friday August 17th, 2012  -  , , , , , , , ,  -  No Comments

The state of California has been a pioneer in the development and implementation of forward-looking environmental and consumer product safety policies and has gone to great lengths to fill the vacuum left by the federal government on many issues of concern. This has included various efforts to reduce the use of hazardous chemicals in a range of consumer goods as well as the establishment of a mandatory recycling programme for electrical and electronic products. The California Department of Toxic Substances Control on 27 July took another step to strengthen the state’s environmental and public health credentials by unveiling a proposal that would require companies to identify and find alternatives to toxic chemicals in consumer products. DTSC initially issued a draft proposal in December 2011 and developed a more formal version taking into consideration the thousands of comments submitted by a diverse group of stakeholders and other interested parties. DTSC will hold a public hearing on the formal proposal on 10 September and those interested in submitting input may do so by 11 September.

The proposal would establish a list of about 1,200 chemicals of concern (down from 3,000 chemicals in the draft proposal) based on the work already done by other organisations and would specify a process for DTSC to incorporate additional chemicals to this list. Five hundred additional chemicals currently used only in pesticides and drugs could be added to the list in the future if they are used in products that are not excluded under Section 25251 of the California Health and Safety Code. DTSC would be required to evaluate and prioritise products that contain chemicals of concern to develop a list of priority products for which an “alternatives assessment” would have to be conducted. The proposal specifies that the first list of priority products will contain no more than five product-chemical combinations. Prior to January 2016 DTSC would list a product as a priority product only if the product is being listed on the basis of one or more chemicals of concern that meet both of two criteria: (i) the chemical is listed on the list of lists specified in the regulations because it exhibits one or more of seven hazard traits (carcinogenicity, reproductive toxicity, mutagenicity, developmental toxicity, endocrine disruption, neurotoxicity and/or persistent bioaccumulative toxicity); and (iii) the chemical is listed on one of the exposure indicator lists identified in the regulations for water quality, air quality or biomonitoring.

The proposed regulations would require responsible entities (manufacturers, importers and retailers) to notify DTSC if their product is listed as a priority product, and DTSC would post that information on its Web site. Manufacturers or other responsible entities of products listed as priority products would be required to perform an “alternatives assessment” for the product and the chemical(s) of concern in that product to determine how best to limit potential exposures or the level of potential adverse public health and environmental impacts posed by the chemical of concern. DTSC would also be required to identify and impose regulatory responses to protect public health and the environment and maximise the use of feasible alternatives of least concern. DTSC would have the authority to require regulatory responses for a priority product/chemical of concern (if the manufacturer decides to retain the priority product) or for an alternative product/chemical selected to replace the priority product.

DTSC would issue a priority product work plan by January 2014 that identifies the product categories that will be evaluated to identify products to be added to the priority products list during the next three years. The regulations specify conditions under which DTSC may revise the work plan subsequent to its issuance. Subsequent work plans would be issued no later than one year before the three-year expiration date of the current work plan. In addition, DTSC would hold one or more public workshops to discuss candidate products prior to issuing the proposed priority products list for further public review and comment.

The proposed regulations would establish a process for any individual or organisation, including federal and other California state agencies, to petition DTSC to add or remove a chemical to/from the chemicals of concern list or a product/chemical combination to/from the priority products list. Petitions may also be submitted to DTSC requesting that an entire existing list of chemicals be added to the list of chemicals of concern.

The following products would be exempted from the regulations.

  • Products exempted under Section 25251 of the Health and Safety Code, namely dangerous prescription drugs and devices; dental restorative materials; medical devices; packaging associated with dangerous prescription drugs and devices, dental restorative materials and medical devices; food; pesticides; and products used solely to manufacture a product exempted by law.
  • Products manufactured, stored in or transported through California solely for use out of state.

As opposed to the draft proposal, the formal proposal no longer includes an upfront exemption from the regulations for products regulated by other laws that provide protections with respect to the same public health and environmental adverse impacts and exposure pathways that are addressed in the proposal. Instead, this factor would be taken into consideration during the product prioritisation process. In addition, the proposal no longer includes a mandate for how frequently DTSC must review and revise the chemicals of concern list.

DTSC indicates that the principal duty to comply with the requirements of the regulations that apply to responsible entities would lie with the manufacturer. If the manufacturer does not comply, the importer, if any, then would have a duty to comply. A retailer would be required to comply with the regulations only if the manufacturer and importers (if any) fail to comply and only after this information is posted on the failure to comply list on DTSC’s Web site. A manufacturer or importer would be able to opt out of complying with the requirements by demonstrating to DTSC that the product is no longer being sold, offered for sale, supplied, distributed or manufactured in California. Likewise, a retailer would be able to opt out by ceasing to order the product and providing a notification to DTSC.

Consequences of non-compliance would initially entail the issuance of a notice of non-compliance to the manufacturer and importers. If the non-compliance is not remedied, the product and information concerning the product would be placed on the failure to comply list maintained on DTSC’s Web site. DTSC may conduct audits to determine compliance with the requirements of the regulations pertaining to alternatives analyses, regulatory responses, and various notifications and information submittals. DTSC may also conduct enforcement actions, which may include the imposition of fines and penalties against responsible entities for failure to comply with the regulations.

DSTC will also maintain on its Web site a response status list with information as to how a responsible entity or a chemical manufacturer/importer has or has not responded to a request for information from the agency. Moreover, DTSC will post on-line a safer consumer products partner recognition list that identifies persons that have voluntarily provided the agency with information that advances the quest for safer consumer products.

According to DTSC Director Debbie Raphael, her agency views the proposal as a “two-for-one initiative.” It achieves public health and environmental benefits by seeking to reduce the use of toxic chemicals and provides a “significant boost” to California companies “into markets that are rapidly expanding.” Raphael believes that the regulations “will stimulate growth in those markets” and move California “toward a higher level of environmental protection.” A DTSC press release also highlights that the proposal was developed in co-operation with business groups, health care advocates, environmentalists and other parties.

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