The US state is pressing ahead with its own chemicals management initiative, in a move that pre-empts federal regulation and moves ahead of proposed TSCA reform
This April, California’s Department of Toxic Substances Control (DTSC) is due to issue an initial list of draft Priority Products for review and analysis as part of the state’s Safer Consumer Products and Workplaces Program. The list, expected to include up to five products, will represent a key stage in the implementation of the state’s Safer Consumer Products Regulations (SCPR).
The announcement of the draft list of products that contain specific candidate chemicals could trigger a series of legal challenges on the grounds that the legislation undermines federal efforts to streamline chemical safety regulations and interferes with interstate and international free trade laws.
The objective of the SCPR is to identify and move product manufacturers towards alternatives to this list of chemicals being used in consumer products, and, according to the DTSC, “reduce the burden on consumers and businesses struggling to identify what is in their products they buy for their families and customers”.
In the process of selecting the Priority Products the department has drawn up a list of over 1,200 candidate chemicals based on hazard traits and exposure indicators, such as biomonitoring and air sampling.
DTSC is evaluating the use of Candidate Chemicals in products, in order to identify Priority Products that contain particular “chemicals of concern.” Products containing these will be required to undergo an alternatives assessment, conducted by the manufacturer.
Once the initial Priority Products go through the rulemaking process, the final list of Priority Products will be established, possibly within a year. The companies with products covered by the list will have 180 days or around six months to produce a preliminary report on each product based on an Alternatives Analysis (AA) of safer replacement chemicals.
After DTSC has checked the compliance of the preliminary reports the “responsible entities” will have a further year to complete a final AA report. Then the department will decide on a regulatory response, which could include no action, labelling requirements, use restrictions or prohibition.
In an analysis of SCPR, the law firm of Alston & Bird, which specialises in environmental legislation, has called it “the most ambitious chemical regulation programme in the world.”
California regulators have taken a cautious approach to the legislation which stemmed from the state’s Green Chemistry Initiative (GCI) enacted in 2008. Under the initiative, the DTSC was directed to draw up a framework for prioritising chemicals of concern in consumer products. It was also mandated to draw up a process for manufacturers to adopt alternatives to COCs in consumer products.
The DTSC claims that what makes the Safer Consumer Product Regulations different from other safe chemicals legislation in the US and even elsewhere in the world is that the end- users of chemicals have to consider not only whether they need to use COCs but also whether alternative chemicals are sufficiently safe.
Manufacturers, importers, distributors or retailers of listed products will have to ask themselves “‘Is this ingredient necessary? Is there a safer alternative? Is that alternative feasible,” says Debbie Raphael, DTSC director.
Furthermore, unlike with Reach, the EU’s chemicals safety legislation, the alternatives assessment will likely be carried out by end-product manufacturers rather than the chemical producers themselves.
Gradual start up
“The programme starts out small, but it sends a big message,” says Raphael. “Innovative and forward-thinking companies will realise the opportunities for growth that stem from this cutting-edge regulation. Smart businesses are already planning ahead, looking for alternative chemicals they can promote as less toxic, family friendly and environmentally safe.”
“These hazard and exposure based regulations have the potential to motivate forward-leaning companies to make already safe products even safer,” adds John Ulrich, executive director of the Chemical Industry Council of California (CICC).
Initial drafts of the SCPR were heavily criticised by a wide range of manufacturers and business groups, who argued the regulations would be a costly mandate with marginal improvement in human health and environmental safety. In comments filed with DTSC, dozens of companies and associations expressed concerns about the lack of economic analysis, and shorting comings in the development of a science-based alternatives assessment. Later versions included significant revisions.
Full implementation of SCPR could take at least three years, leaving opportunities for more revisions. Raphael has conceded that changes are possible even after it has been enacted.
At least 33 other US states are considering introducing regulatory controls on untested or toxic chemicals in everyday products, according to Safer States, an NGO. Eleven of these are proposing regulations to identify chemicals of concern and requiring consumer product manufacturers to disclose their use of chemicals.
SCPR could prove a testing ground for US states and other sub-federal entities to take their own regulatory initiatives on chemicals safety and other issues, not just in the context of national laws but international ones as well.