Starting January 1, 2011, how companies design and manufacture consumer products sold, offered for sale, distributed, supplied, or manufactured for use in California will change dramatically. That is when new regulations prompted by California’s Green Chemistry Initiative, an outgrowth of two bills approved in 2008, take effect. Specifically, Assembly Bill 1879 mandates a process to identify and prioritize chemicals of concern in products, followed by a procedure in which those chemicals and their potential alternatives “are evaluated to determine how best to limit exposure or to reduce the level of hazard posed by a chemical of concern.” Senate Bill 509 further mandates an online database to disseminate information about specific chemical hazards.
On November 16, 2010, California’s Department of Toxic Substances Control (“DTSC”) released revised draft regulations to effectuate the Green Chemistry Initiative. Although the “duty to comply” with these regulations principally lies with the consumer product manufacturer, “[a] retailer is required to comply with these requirements . . . if the manufacturer has failed to comply and [DTSC] notifies the retailer of the manufacturer’s non-compliance by posting the information on the Failure to Comply List.”
The revised draft largely maintains the four-step process as originally proposed with a few key differences:
Step 1: DTSC will first prepare a Chemicals of Concern (“COC”) list based on traits associated with physical chemical hazards, adverse public health impacts, adverse ecological impacts, adverse air quality impacts, adverse water quality impacts, and adverse soil quality impacts. Any person may petition DTSC to evaluate a chemical or a product that is, or that contains, a chemical (see Step 2) for inclusion in this prioritization process. The initial COC list will be finalized no later than December 31, 2011.
Step 2: From its COC list, DTSC will prepare a “Priority Products” list that includes those products considered of the highest priority based on the relative degree of threat posed to public health or the environment based on the evaluation of the COC contained in the product and other pertinent factors, like the estimated volume of the product placed into the stream of commerce in California, or the potential for exposure to the COC. The initial Priority Product List will be finalized no later than December 31, 2012.
Step 3: Within 60 days after the designation of a Priority Product (or just 30 days if it is a new California product), each responsible entity must notify DTSC that their product is on this list. The responsible entity must then perform an “Alternative Assessment” (“AA”) for the Priority Product that considers, among other objectives, different means to reduce the concentration of, or eliminate, the COC found in the Priority Product. An AA Work Plan must be submitted no later than 180 days following the date of the applicable final Priority Product listing. If DTSC approves the AA Work Plan, the responsible entity must then complete an AA Report that details, among other items, an assessment of each alternative to the COC, the rationale for selecting a specific alternative (or not), and “[a] detailed plan, including key milestones and dates, for implementing the selected alternative, if applicable.” Each AA and AA Report must be “reviewed and verified by a third-party that has no economic interest in the responsible entity.”
Step 4: Following its review of the AA Report, DTSC will notify the responsible entity of its regulatory response, which may include no response, labeling, “end-of-life” management, restrictive usage, restrictive exposure, or other regulatory responses. DTSC also has the authority to prohibit sales of the product in California, and require that the responsible entity implement a recall program within three years.
December 3, 2010, is the deadline for public comments on the revisions to the proposed regulations.
Content for this post was provided by Kevin Mayer in the Los Angeles office and Matthew Jaffe in the D.C. office of Crowell & Moring, LLP.