The State of California, through its Department of Toxic Substances Control (DTSC), is proceeding with a major new regulatory program aimed at reducing or eliminating many toxic chemicals in consumer products. The state’s actions could significantly impact the way many consumer products are made and sold in California, the United States and other large markets. At issue is the “Green Chemistry Law,” which passed the California Legislature in 2008 and was signed into law by then Governor Schwarzenegger. Following a lengthy time period to establish a regulatory process aimed at systemically evaluating product ingredients, the program’s regulations, known as the “Safer Consumer Products” or SCP, came into force on October 1 and will be phased in over the next several years to coordinate with the timing of the various regulatory requirements.1
As DTSC makes clear on its website, the program will be far-ranging and is aimed at making profound changes:
“In the past, toxics in products were dealt with on a case-by-case basis when found to have harmed consumers or our environment. This historic approach was not preventative or protective. After relying on ‘single product bans’ for so many years, California’s new regulations start a movement to systematically evaluate alternative ingredients by requiring that manufacturers ask: ‘is this ingredient necessary, and is there a safer alternative?’”2
Near-Term Regulatory Overview
On September 26 (and updated October 18), DTSC published a registry list of approximately 2,350 “Candidate Chemicals” based on their hazard traits and/or history of exposure. By April 1, 2014, DTSC is to identify no more than five “Priority Products” that contain one or more of the “Candidate Chemicals” that have both a hazard trait and a history of exposure.3 Upon finalization of the list of Priority Products, responsible parties, including manufacturers, importers, and retailers, are to notify DTSC when their product is listed as a Priority Product. The manufacturer must perform an alternative analysis, to determine how best to limit exposures to, or the level of adverse public health and environmental impacts posed by the Chemicals of Concern (COCs) in the product.4
The regulatory roll out is initially expected to be long and slow with companies submitting the first stage alternative analysis reports sometime in 2015 at the earliest, and the second stage alternative analysis report a year later. Any product changes based on DTSC’s regulatory response would then occur.
The Complexity of Meeting Regulations
While the initial regulatory period will be lengthy, the profound changes the state seeks to impose on manufacturers will likely require years of careful planning and study to address fully and properly. The Safer Consumer Products program requires manufacturers to go back to the drawing board and consider environmental and human health parameters for certain products that contain the designated COCs.
Manufacturers will have several options, all of which can be costly and time consuming. These options can include:
• Re-designing the product to eliminate the COCs
• Removing the COCs
• Pulling the product from the California market
• Replacing the COC with a less toxic substance
• Justifying keeping the COC
• Taking other protective actions
The Benefits of a Proactive Approach
As potentially significant as the California regulations aim to be, they are in one respect just the latest challenge that many consumer products manufacturers are facing to eliminate toxic ingredients in, and improve the environmental performance of, their products already on the market and under development.
Other drivers in this regard include the following.
• The European Union already limits or bans over 100 substances for manufacturing or placing on the market through Annex XVII of the REACH regulation.5
• Large retailers are increasingly taking pre-emptive steps to curtail the sale of products with certain toxic chemicals. For example, Wal-Mart already requires suppliers to disclose and eventually phase out nearly 10 hazardous chemicals from the fragrances, cosmetics, household cleaners and personal care products in its stores.6 Additional requirements will come into place in 2015-16.
• Countries and locales with large consumer markets, including China, India, California and Turkey, have already adopted a version of the European Union’s Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive, or RoHS. Many other large countries and more U.S. states may soon follow.
The Safer Consumer Products regulatory developments in California, coupled with the preceding factors, are making it increasingly important for consumer products manufacturers to analyze the composition of their products and to determine what changes can and should be made. This trend will continue and accelerate in the coming years. As such, companies that begin this complex process today will be in a better position to make these changes when they are required, get ahead of the competition, and avoid disruptive and expensive surprises that could otherwise occur down the line.
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1 “Safer Consumer Products: What is the Safer Consumer Products (SCP) Program?” (http://www.dtsc.ca.gov/SCP/index.cfm) California Department of Toxic Substances Control, Safer Consumer Products homepage. Retrieved 2013-11-08.
2 “Why do we need the new regulations?” (http://www.dtsc.ca.gov/SCP/index.cfm) California Department of Toxic Substances Control, Safer Consumer Products, Frequently Asked Questions. Retrieved 2013-10-29.
4 “What are the Safer Consumer Products Regulations?” (http://www.dtsc.ca.gov/SCP/index.cfm) California Department of Toxic Substances Control, Safer Consumer Products. Retrieved 2013-20-29.
5 “List of restrictions table” (http://echa.europa.eu/web/guest/addressing-chemicals-of-concern/restrictions/list-of-restrictions/list-of-restrictions-table) European Chemicals Agency, Table of substances/group of substances, which are restricted by Annex XVII to REACH Regulation. Retrieved 2013-11-08.
6 “Wal-Mart announces phase-out of hazardous chemicals” (http://www.usatoday.com/story/news/nation/2013/09/12/walmart-disclose-phase-out-toxic-chemicals-products-cosmetics/2805567/) USA Today. September 12, 2013. Retrieved 2013-10-29.