Some would say that doing business in California can sometimes
pose extra challenges. Anyone who's spent any time in the
Golden State is, of course, familiar with omnipresent signs like
the one above. However, California has just taken a significant
step forward in what could be described as an effort to reduce the
presence of products that require such signs.
In late August, California approved the Department of Toxic
Substances Control's (DTSC's) landmark Safer Consumer Products Regulations. These
regulations help implement the State's Green Chemistry
Initiative designed to accelerate the use of safer products through
a science-based process that evaluates chemicals of concern and
identifies safer alternatives. There are four primary steps:
Establishment of a Candidate Chemicals list, said to contain
approximately 230 chemicals (i.e., carcinogens, reproductive
toxins, mutagenic toxins, neurotoxins, endocrine disruptors, toxic
air contaminants, and water pollutants). This list is expected to
grow to 1,200 chemicals.
Designation of Priority Product/Candidate Chemicals
combinations ("Priority Products") by DTSC that will
require the assessment of safer alternatives. Examples of such
possible priority products that have been discussed are
formaldehyde-based hair straighteners, nail polish, carpet
adhesive, and furniture seating foam.
Performance of Alternatives Assessments for Priority Products
by manufacturers or other responsible entities, including
importers, assemblers, and retailers.
Identification and implementation of "Regulatory
Responses" by DTSC designed to protect public health and the
environment. Examples include requiring notice to consumers,
establishing end-of-life product stewardship programs, restricting
the use of chemicals in a product or the use of a product, or
banning sales of a product in California.
These new regulations apply to many consumer products, including
cosmetics and over-the-counter drugs, that are sold, offered for
sale, distributed, supplied, or manufactured in California.
Exemptions include: dangerous prescription drugs and devices;
dental restorative materials; medical devices, packaging associated
with dangerous prescription drugs and devices, dental restorative
materials, and medical devices food; and pesticides.
Effective October 1, 2013, these regulations
signal the end of a regulatory process that began over five years
ago. Pursuant to the regulations, the DTSC's forthcoming
actions include (1) publishing an informational list of Candidate
Chemicals on its website by November 1, 2013; (2)
proposing an initial list of up to five Priority Products for
public comment by April 1, 2014; and (3) drafting
guidance for performing Alternative Assessments.
Is your company prepared?
The cosmetic industry is likely to take a large hit, and the
provisions provide for criminal and civil penalties of up to
$25,000 per violation. Companies whose product(s) fall under this
large umbrella should familiarize themselves with the chemicals
posted on the Candidate Chemicals list in the upcoming months. Rest
assured that as soon as DTSC releases this list, we will post a
blog discussing the nitty-gritty details.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Federal Trade Commission ("FTC") joined the widely publicized "natural" products debate by issuing four settlements and bringing a new complaint relating to misleading "all natural" or "100% natural" advertising claims.
Last week, a putative class action complaint was filed in the United States District Court for the District of Connecticut alleging that Edible Arrangements, LLC ("EA") sent automated text message advertisements without obtaining the prior express written consent of recipients in violation of the Telephone Consumer Protection Act ("TCPA").