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California released on July 27 a long-awaited formal draft of regulations designed to spur manufacturers to identify safe substitutes for chemicals of concern found in consumer products.
The Safer Consumer Products regulations, required by a state law passed in 2008 commonly known as the Green Chemistry Initiative, would:
• establish a list of chemicals of concern expected to number approximately 1,200;
• identify a group of up to five “priority products” that contain one or more chemicals of concern;
• require manufacturers that produce or sell the priority products in California to identify potential alternatives and conduct an alternatives assessment using a process and criteria described in the proposal; and
• require manufacturers to produce a report detailing their findings and proposed next steps to California's Department of Toxic Substances and Control (DTSC).
The department would then review that analysis and determine and publish for comment its proposed regulatory response. These could be actions such as chemical use restrictions, sales prohibitions, or engineering or administrative controls.
After receiving public comment on the proposed regulatory response, the department would notify the manufacturer or manufacturers of the regulatory response or responses and the implementation dates by which manufacturers would have to comply with the decisions.
If the department determines that a safer alternative to the chemical of concern is available that is “functionally acceptable and technologically and economically feasible,” that alternative must be used within one year.
Manufacturers could be prohibited from selling priority products with chemicals of concern within one year of the department notifying them that a safer alternative is available.
Michael Kirschner, president of Design Chain Associates, a California consulting firm that tracks state, U.S., European, and other chemical regulations affecting products, told BNA July 27 that California is proposing “a very different type of product-targeted environmental regulation than we have seen in the past.”
“It does not simply ban or restrict substances in products,” he said.
Rather, California's approach would force manufacturers to assess alternatives from an environmental performance perspective.
Typically, companies think about issues such as the function and cost of the chemicals in their products; now they will have to consider health and environmental concerns, he said.
“This will require more work on the manufacturer's part than ban or restriction regulations have, but should result in fewer 'regrettable substitutions' than we've seen in the past,” Kirschner said. Some chemical substitutions have been found to pose a greater health or environmental problem than the chemicals they replaced.
The proposed regulation is significantly better than a version that was floated in 2010 and quickly shot down, he said. California withdrew the proposal following strong criticism from industry and environmental groups (35 CRR 43, 1/10/11).
The department's latest proposal is far more workable and designed to be phased in slowly so that regulators and industry can learn how to conduct needed analyses and address concerns they may identify.
The intent is to issue a final regulation by the end of this year or early next, Kirschner said.
Environmental, public health, and labor organizations quickly praised this proposal.
“We applaud Governor Brown and Director Raphael for developing smart and well-planned rules that can protect families and our environment from unnecessary exposure to toxic chemicals,” Sierra Club California Director Kathryn Phillips said in a statement. “Californians should not have to wonder if everyday products are toxic. Access to products that will not harm our families and our environment should not be a luxury.”
Kathryn Alca′ntar , California policy director at Center for Environmental Health, said in a statement: “This approach is most welcome and long overdue. For decades, when health threats from a chemical in consumer products would surface, industry would simply replace the toxic substance with new risky and untested chemicals. With these new rules, we will finally break free of this toxic shell game.” The center represents health, worker, consumer, physician, and environmental advocacy organizations.
Trade associations and other industry representatives voiced a cautious approach.
The Green Chemistry Alliance, which represents a wide range of types of companies, said it was reviewing the regulation's latest draft and would offer detailed comments when that review is completed.
“It is our hope that this proposed draft of the regulations--the eighth issued in the past four years--reflects a willingness on the part of regulators in Gov. Brown's administration to achieve California's green chemistry goals without endangering jobs or placing new burdens on consumers. “
In a press briefing on the proposal, DTSC Director Deborah Raphael said, “We believe these regulations will be good not only for the health of our consumers but for the health of our economy.”
When companies “make products with the environment and human health in mind, they will have a phenomenal set of customers around the globe who want to buy those products.”
By Pat Rizzuto
The regulations and related documents are available at http://www.dtsc.ca.gov/SCPRegulations.cfm.
DTSC will hold a hearing on the proposed regulations Sept. 10. Written comments on the proposal should be marked Reference Number R-2011-02 and emailed to email@example.com.
Technical questions should be directed to Krysia Von Burg, regulations coordinator, at (916) 324-2810, or firstname.lastname@example.org.
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