DTSC on Thursday March 13, 2014 announced the first three Priority Products under the Green Chemistry Regulations. The manufacturers of these products that sell into California are now on a regulatory time schedule to try to find alternatives to the use of the identified chemicals in the specified products. We have set out this timetables from some of our prior blogs below.
The three products include children’s foam padded sleeping products containing TDCPP (chlorinated Tris), Spray polyurethane foam systems containing unreacted diisocyanates, and paint strippers containing methylene chloride. A Priority Product is a consumer product that contains one or more chemicals – known as Candidate Chemicals – that have a hazard trait that can harm people or the environment. A proposed list of three product-chemical combinations was released on March 13, 2014.
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.