On July 27, 2012, California released a revised draft of its Safer Consumer Products Regulations—commonly known as the "Green Chemistry Initiative." The proposed regulations establish a process for California’s Department of Toxic Substances Control (DTSC) and product manufacturers to assess whether consumer products containing certain "chemicals of concern" can be made with safer ingredients. Once implemented, the regulations will empower DTSC to order companies to use substitute chemicals when manufacturing certain consumer products or face a ban on the sale of those products in California. Moreover, manufacturers that currently sell products only outside of California will have to be increasingly vigilant about whether their products end up being sold in California, and subject to these regulations.

Manufacturers, importers and retailers of consumer goods—defined as "responsible entities"—should be aware of that:

  • All consumer products will be impacted: Regardless of whether the product is named a “priority product” by DTSC or contains one of the 1,200 “chemicals of concern,” responsible entities will be required to provide information on the source, ingredients, and toxicity characteristics of each of their consumer products sold in California. Responsible entities with a "priority product" in the stream of commerce will have a heightened obligation to produce detailed reports—known as "alternatives assessments"—to DTSC, which DTSC will use to determine whether manufacturers will need to reformulate certain products to continue sales in California. Companies that do not comply will be named on a publicly accessible "failure to comply" list on DTSC’s website.
  • All entities in the distribution chain should remain vigilant: While the obligations for responsible entities under the regulations are tiered, no level of commerce is exempt. Primary reporting and compliance responsibility will lie with the manufacturer. The importer will have responsibility if the manufacturer fails to comply, and retailers will be required to comply only if the manufacturer and importer (if any) fail to comply. Retailers will be responsible for tracking information posted on a "Failure to Comply" list on DTSC’s website, and ensuring compliance for listed products.

The proposed regulations are presently undergoing a 45-day public comment period. DTSC intends to issue final regulations by the end of this year or early 2013. DTSC will hold a hearing on the proposed regulations on September 10, 2012, and written comments are due by September 11 at 5 PM PST.

For more information and to read the full client alert, please click on this link.

Content for this post was provided by the following product risk management attorneys: Kevin C. Mayer (partner in Crowell & Moring’s Los Angeles office), Monica M. Welt (counsel in Crowell & Moring’s DC office), and Lynn R. Levitan (counsel in Crowell & Moring’s Los Angeles office).