As of October 1, 2013, the California Green Chemistry Law and its regulations are officially part of the landscape . The California legislature passed the Green Chemistry Law in 2008, which authorizes and requires the California Department of Toxic Substances Control (the “DTSC”) to adopt regulations to establish a process to identify and prioritize chemicals in consumer products and evaluate chemicals of concern in consumer products and their potential alternatives.
From a list of “Candidate Chemicals” the DTSC will identify particular “Chemicals of Concern” and “Priority Products” for which an analysis of alternative chemicals must be accomplished to determine how to limit exposures or the adverse level of environmental impacts. The list of chemicals was released on September 26, 2103 , and can be found here. As a point of interest it appears that at least 50% of chemicals that are already on the Proposition 65 list.
Now that the list has been established, DTSC will evaluate and identify products that contain candidate chemicals for the development of the first “Priority Products List.” In evaluating products, DTSC will consider the potential for exposure to the candidate chemical in the product, the potential for that exposure to contribute to or cause adverse health or environmental impacts, and the potential adverse effects from the disposal of the products. No later than 180 days after the effective date of the regulations (April 1, 2014), DTSC must post the Priority Products List for public review and comment. This list shall not contain more than five priority products. The first priority products under consideration reportedly are: toluene in nail polish, carpet adhesive with formaldehyde, and mercury in fluorescent light bulbs, according to the DTSC
The DTSC is then to identify and require implementation of regulatory responses for Priority Products; if the manufacturer retains the Product and the chemical of concern. There are also listing and delisting provisions for Candidate Chemicals.The Department of Toxic Substances Control has developed the list of about 1,200 toxic chemicals by summarizing and filtering other sources. The next step, which culminated in the list of about 200 products that contain chemicals of greatest concern — that pose the most danger to health and/or the environment.. If no other ingredient is feasible, the DTSC has the ability to apply one of several regulatory responses that would reduce risk or phase out the chemical.
Sixty days after a product has been included on the Priority Products List, the entity responsible for the distribution of product (“Responsible Entity, RE”) must notify DTSC, and submit a Preliminary Alternatives Analysis Report (“Preliminary Report” (or “Alternatives Analysis”). The report is to be submitted no later than 180 days after the product’s listing.
If the Preliminary Report is accepted, the RE has 12 months to submit a Final Alternatives Analysis Report (“Final Report”). The report is reviewed by the DTSC to see if the conclusions in the report are supported by the date and that the chemical was properly reviewed. DTSC is to consider the following factors; alternatives that avoid or reduce adverse impacts through redesign of the product or the process; the degree the proposed report can addresses the potential adverse impacts; the ability of the ultimate user to understand information or directions provided with the Responsible Entity; and the cost of the alternatives.
The DTSC then determines whether additional actions are required to protect health and/or the environment. DTSC can require a number of alternative actions including the provision of additional information, restrictions on use, requiring additional safety provisions. An analysis can be avoided if the product is longer distributed in California, if the chemicals of concern have been removed from the product without the use of any replacement chemicals; the chemicals have been removed from the project or the substitute chemical is already being used by another manufacturer in the same product. Consumer product manufacturers have the primary responsibility to comply with these regulations, if however a manufacturer is not in compliance, the duty falls on the importer upon notice of noncompliance of the manufacturer from DTSC. If both manufacturer and importer fail to comply, the responsibility then falls on the assembler or retailer once DTSC posts a notice on its website. To avoid criminal and civil penalties of up to $25,000 per violation, businesses in all levels of the supply chain need to prepare for compliance with the Green Chemistry regulations.
What should manufacturers and distributors be doing?
Although it is unlikely that a Company will be immediately effected, it should be checking the list with their supply chain vendors and suppliers to assure that they are aware of these requirements. The regulations have short timelines, and these timelines will be critical as Priority Product Lists are published. Having those discussions now may help companies in the supply chain understand how the regulations may affect their businesses indirectly. Additionally suppler contracts should be revised to include warranties and representation regarding compliance.