On October 1, 2021, the California Department of Toxic Substances Control (“DTSC”) published a proposed regulation that would list Nail Products Containing Toluene as a Priority Pollutant under its Safer Consumer Products (“SCP”) program.

Comments will be accepted by the DTSC respecting the proposed regulation until November 18, 2021.

The proposed regulation is aimed specifically at nail salon workers as well as pregnant women and their fetuses, infants, children and adolescents.

The rationale behind DTSC taking this action at this time, in part, is that these populations, within the specific context of nail salons currently under consideration, are deemed “sensitive subpopulations” pursuant to 22 Cal. Code Regs. § 69501.1(a)(64), as well as comprising a significant percentage of persons of color and/or persons of lower socioeconomic status, as set forth in Cal. Gov’t Code 65040.12(e) (“Environmental Justice”).

The proposed regulation covers nail coatings and nail polish thinners, including an array of specific types of coatings, including solvent or UV base coating, top coating, lacquer, gel nail polish, hard gel, shellac, nail art paint, and nail polish thinner, and thus is quite comprehensive in scope.

Although toluene is listed under Proposition 65 and other lists of toxins, Proposition 65 contains an exemption for businesses that employ less than ten (10) persons.  It is not uncommon that nail salons fall within this exemption and thus would not be subject to the warning requirement contained in Proposition 65.  This action is designed, in part, to address this perceived regulatory gap.

DTSC studies report that retail sales of nail products exceed $1 billion and that, of this amount, nail polish represented $714 million of these sales.  Companies that may be affected by this development may wish to submit comments applicable to the proposed listing.  Among other things, DTSC is authorized to implement a range of regulatory responses under the SCP program, including, under certain circumstances, requiring the removal of toluene from nail products or requiring the cessation of sales of nail products containing toluene in California.

DTSC’s SCP program has had a bit of a shaky start.  Earlier this year, a Fresno County Superior Court Judge ruled that the DTSC had failed to adequately comply with CEQA in listing spray polyurethane foam systems with unreacted methylene diphenyl diisocyanates (more commonly referred to as “SPF Systems”).

The SCP regulations are set forth in 22 Cal. Code Regs. §§ 69501 et seq. and the current proposed regulation would amend §69511 and add a new §69511.6 entitled “Nail Products Containing Toluene.”