After multiple proposals and nearly four years of public consultation, California recently reproposed its groundbreaking “green chemistry” regulations. Referred to as the “Safer Consumer Products” regulations, this program will ultimately require manufacturers to eliminate particular “Chemicals of Concern” from an array of consumer products. These rules will affect consumer products — large and small, complex and simple — offered for sale in California, regardless of where manufactured. Given the size of the California market, this regulation likely will lead to de facto consumer product standards across the United States. Complicating matters, a variety of other green chemistry requirements have been enacted or proposed in other states, and at the federal and international levels, with little coordination. Accordingly, consumer product manufacturers, importers, and retailers everywhere should take notice and plan for the final adoption of the California regulations, integrate those plans with requirements in other jurisdictions, and consider incorporating green chemistry practices into product development and sustainability efforts.
California’s Green Chemistry Rules
California has long been on the leading edge of environmental regulation. Since 1986, the state’s Proposition 65 has required warnings on products that may expose consumers to an ever-growing list of substances identified by the state to cause cancer or reproductive harm. Enacted in 2008, the California green chemistry initiative (AB 1879) went further by requiring the California Department of Toxic Substances Control (“DTSC”) to establish a process for evaluating potentially harmful chemicals, referred to as “Chemicals of Concern,” in consumer products, potential safer alternatives to those formulations, and the best means to limit exposure or to reduce the level of hazard posed by a Chemical of Concern. After several previous attempts, DTSC proposed revised regulations in July 2012, which appear on path to adoption possibly by year’s end, despite significant objections expressed by a broad spectrum of businesses.
If adopted, starting with an initial list of approximately 1,200 Chemicals of Concern from existing authoritative lists, DTSC will select the consumer products containing Chemicals of Concern that warrant an assessment of potentially safer alternative formulations. Manufacturers (or importers and retailers, if necessary) of these so-called “Priority Products” will then need to determine how best to limit exposures to, or the level of adverse public health and environmental impacts posed by, Chemicals of Concern in their “Priority Products,” and conduct an assessment of potentially safer alternative formulations. DTSC is authorized to take a host of actions in response to these assessments, including requiring notice to consumers, establishing end-of-life product stewardship programs, restricting the use of particular Chemicals of Concern in a product or the use of the product itself, or simply banning sales of the product in California altogether. Fortunately, DTSC’s initial set of Priority Products, scheduled within 180 days of the regulation’s effective date, will be limited to no more than five products, but additional products will be added over time.