Commentary provided by Compliance and Risks' Data Partners Bergeson & Campbell PC.
On August 28, 2013, California's Office of Administrative Law (OAL) approved the California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations). The Regulations will take effect on October 1, 2013.
The Regulations are the much anticipated regulatory implementation of California's Green Chemistry Initiative. DTSC's implementing regulations have gone through several iterations, most recently revisions were proposed on August 23, 2013 (the 15-day comment period for these last comments are open until September 9, 2013, despite the issuance of final Regulations). Memoranda providing background information on past iterations are available online and in C2P. The Regulations and Final Statement of Reasons are also available online and in C2P.
The scope of the Regulations, including the four core elements of Regulations -- Candidate Chemicals, Priority Products (PP), Alternatives Analysis (AA), and Regulatory Responses -- are discussed in the article highlighting essential details of the regulations at the link below. As noted in the article, considering the timeframes provided in the Regulations, it will be years to complete the process for one PP -- from the time the Candidate Chemicals List is first released, the Initial Priority Product List is released and then issued in final, the AA process is completed, and the regulatory responses are issued. While there are indications that these Regulations may be subject to litigation, a prudent initial step for any company doing business in California to consider is to review, when available from DTSC, the Initial Candidate Chemicals List and determine if any of its consumer products contain one of those substances. It will also be important for companies with products identified as PPs to identify other entities similarly affected and determine the ability to consolidate efforts (e.g., through a consortium) in conducting an AA.
Analysis:
Once the Regulations are effective on October 1, 2013, the clock will begin running for DTSC to release the Candidate Chemicals List (30 days from the Regulations' effective date) and identify the first set of proposed PPs (180 days from the Regulations' effective date). Companies with consumer products in the stream of commerce in California that are identified as PPs will need to notify DTSC that its product is a PP; perform an AA and prepare a Preliminary AA Report and Final AA Report (or use an approved alternative); and comply with any regulatory responses DTSC applies to its product. Considering the timeframes provided, it will be years from the time the Candidate Chemicals List is first released, the Initial Priority Product List is released and then issued in final, the AA process is completed, and the regulatory responses are issued. Companies also may need to respond to information requests from DTSC, submit notifications to avoid AA responsibilities, substantiate claims when information is submitted as trade secret, and potentially utilize the dispute resolution procedures to dispute certain actions taken by DTSC (Section 69507).
While there are indications that these Regulations may be subject to litigation, a prudent initial step for any company doing business in California to consider is to review, when available from DTSC, the Initial Candidate Chemicals List and determine if any of its consumer products contain one of those substances. It will also be important for companies with products identified as PPs to identify other entities similarly affected and determine the ability to consolidate efforts (e.g., through a consortium) in conducting an AA.
To access the full article including details on the persons and products subject to the regulation please click here.
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