United States: California Unveils Its First Green Chemistry Regulations For Children's Foam-Padded Sleeping Products With Fire Retardants

Last Updated: July 25 2016
Article by Peter Hsiao and Robert L. Falk

Following up on the breakthrough amendments to the federal Toxic Substances Control Act (TSCA), California has reasserted its intention to proceed with its Green Chemistry Initiative to require substitution of safer chemicals in consumer products. On July 15, 2016, the California Department of Toxic Substances Control (DTSC) released its first proposed "Priority Products List" regulations under the California Safer Consumer Products (SCP) Program. The proposed regulations would add children's foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP) or tris(2-chloroethyl) phosphate (TCEP) as its first Priority Product. But as discussed later, there is an interesting twist to DTSC's choice of this particular Priority Product.

Under the proposal, DTSC defines "Children's foam-padded sleeping products containing TDCPP or TCEP" as "assembled products designed for children, toddlers, babies or infants to nap or sleep on, that include polyurethane foam mats, pads or pillows containing TDCPP or TCEP which may be covered or upholstered" and includes:

  • Nap mats;
  • Soft-sided portable cribs;
  • Playpens;
  • Play yards or playards;
  • Infant travel beds;
  • Portable infant sleepers;
  • Bassinets;
  • Nap cots;
  • Infant sleep positioners;
  • Bedside sleepers;
  • Co-sleepers; and
  • Baby or toddler foam pillows.

It does not include:

  • Mattresses subject to Consumer Product Safety Commission requirements;
  • Furniture subject to the requirements of California Technical Bulletin 117-2013; and
  • Add-on child restraint systems used in vehicles and aircraft because they are required to meet federal flammability standards.

Reasons for Listing

According to the Initial Statement of Reasons (ISOR) for the proposed regulations, DTSC selected children's foam-padded sleeping products containing these flame-retardant chemicals of concern as a Priority Product due to the potential exposure which may "contribute to or cause widespread or significant adverse impacts to people, particularly to children, families and workers, or wildlife." The ISOR further states that "There are no state or federal legal requirements to include chemical flame retardants in children's foam-padded sleeping products that are primarily marketed for use by children and commonly used in homes and day care centers."

Preliminary Alternatives Analysis

Responsible entities must submit their Preliminary Alternatives Analysis Report 180 days after the effective date of the regulations. For a discussion on DTSC's Alternatives Analysis Guidance, see our October 2015 client alert posted on the Green Chemistry portal web page at http://www.mofo.com/green-chemistry.

Other Priority Products

In addition to the children's foam-padded sleeping products containing TDCPP and TCEP, the other two Priority Products that were listed on DTSC's initial list were:

  • Paint and varnish strippers containing methylene chloride and
  • Spray polyurethane foam systems containing unreacted methylene diphenyl diisocyanates.

These will be handled under separate rulemaking proposals.

Public Hearing and Comment Period

DTSC is scheduled to hold a public hearing on the proposed regulations on August 29, 2016 and it will accept comments until then. A copy of the proposed regulations, related materials and additional useful information can be found on our Green Chemistry portal web page at http://www.mofo.com/green-chemistry.         

Relationship to TSCA Reform and Proposition 65

California's action immediately follows the long-awaited amendments to overhaul TSCA which had bipartisan support in Congress and from the Obama Administration. (See MoFo client alert, "Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act," dated June 22, 2016, at http://www.mofo.com/green-chemistry.) Industry supported the amendments in part to preempt individual state action that risked creating a checkerboard of conflicting requirements for chemicals in consumer products. (See MoFo client alert, "The Toxic Substances Control Act Amendments May Do Little to Relieve California Headaches for Businesses," dated July 11, 2016, at http://www.mofo.com/green-chemistry.)  DTSC's action is a strong statement that California intends to proceed with its regulations of those products without waiting for EPA to act under its new TSCA authority.

The interesting twist however arises from prior settlements in California's Proposition 65 cases involving these products and chemicals. Leading industry defendants, represented by Morrison & Foerster, settled those cases with agreements that resulted in the widespread removal of TDCPP and TCEP from the subject products. With those chemicals already eliminated in the Priority Products, DTSC may be proceeding with its Green Chemistry listing because of a lack of coordination with Proposition 65. A more sophisticated reason may be DTSC's desire to use its first Priority Product listing as a test run to promulgate its new regulations on a limited number of regulated parties, those that have not already substituted the subject chemicals, and to achieve an early success for its fledgling program.

Regardless of DTSC's reasons, the result is that consumer product manufacturers will continue to face both federal and state chemical rules governing their products in California.

Lois Miyashiro, an environmental analyst in the firm's San Francisco office, assisted in the preparation of this client alert.

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 situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Peter Hsiao
Robert L. Falk
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.