Today, the California Department of Toxic Substances Control
(DTSC) announced its highly anticipated list of the first products
and chemicals to be evaluated under the state's innovative
Safer Chemical Product regulations. Although DTSC had previously
announced that it would initially regulate up to five products
under the implementing regulations, they selected only three
classes of products.
The products and their chemicals of concerns are:
Children's foam padding sleeping products
containing the flame retardant TDCPP, also known as chlorinated
tris. As many companies may know, these products have been the
subject of extensive Proposition 65 private enforcement
Spray polyurethane foam systems containing
unreacted diisocyanates, which are commonly used in home
In its announcement, DTSC stated that the selection was based on
three primary criteria: (1) the potential for the chemical to
create significant harm to the public or the environment; (2) the
potential for the product to create a pathway for exposure to the
chemical of concern; and (3) whether the chemical exposure impacts
sensitive subpopulations, such as children or the elderly.
By announcing the first priority products, DTSC has taken the
next major step forward to implement its innovative Green Chemistry
program enacted in 2008. The law seeks to regulate toxic chemicals
in consumer products and to reduce or eliminate those hazards, in
part by encouraging the elimination or substitution of safer
chemical ingredients. While the initial list of priority products
only contains three product/chemical pairings, DTSC plans to expand
the list over time to cover a significantly greater number of
products and chemicals. Additional products to be regulated will be
announced by DTSC in October 2014.
The law has four steps, first directing DTSC to identify lists
of chemicals of concern, and second to prioritize consumer products
containing those chemicals for regulation. The third step is for
the manufacturer of the consumer product or other responsible
entities to prepare an analysis for submission to DTSC to describe
alternatives to mitigate exposure to the chemical of concern at all
points during the product's lifecycle. The fourth step is a
regulatory response from DTSC, which can include content or use
limitations, mandatory recycling programs or a ban on the use of
the chemical, among other options. The details of the regulation
and additional useful guides can be found at the Green Chemistry
portal web page at
It is important to note that this was an informal announcement
and the formal rulemaking and public comment period will likely
begin in late summer. Once the list is finalized, a manufacturer or
other responsible party must notify DTSC that its product appears
on the product list. That party must then choose between (i)
removing the chemical of concern without substituting any other
chemical on DTSC's list of chemicals of concern; (ii) cease
sales of the product to California; or (iii) prepare the analysis
of alternatives for submittal to DTSC. The DTSC may seek civil
penalties and injunctive relief against companies that fail to
comply with these requirements.
Manufacturers and retailers are now on notice to participate in
the rulemaking process and prepare for potentially difficult
decisions regarding reformulation or limiting the sales of these
products in California. These products are the canary in the coal
mine for both DTSC and the regulated consumer product
Morrison & Foerster represents retailers, consumer product
manufacturers, chemical companies and some of the leading
biochemistry research and development companies. We are closely
watching and participating in the development of Green Chemistry
regulations and can provide additional information about this
important process upon request.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
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