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California Department of Toxic Substances Control Releases Consumer Product Safety Regulations for Public Comment

November 8, 2011

 

On October 31, 2011, the California DTSC released for public comment sweeping new regulations for consumer products sold in California that contain certain toxic chemicals. The regulations will require extensive alternatives analyses for identified products, which over time may include everything from toys and personal care items to electronics and automobiles. Manufacturers will be primarily responsible for compliance, though the regulations have the potential to impact others in the supply chain, including importers and retailers, whenever manufacturers fail to comply. The regulations are expected to go into effect by the Fall of 2012.

The regulations will require DTSC to generate an initial list of about 3,000 “Chemicals of Concern,” borrowing from existing lists maintained by regulatory agencies in California and elsewhere. DTSC will augment the list over time, and private parties and other government entities will be able to petition to have new chemicals added.

DTSC will also prepare and post on its website an initial list of two to five “Priority Products” that contain any Chemicals of Concern. The list will be subject to revision every three years. Manufacturers “or other responsible entities” must review the list to determine if they manufacture any of the Priority Products. If they do, they must perform a detailed “alternatives assessment” for each listed product of the best ways to limit or eliminate impacts on the environment and consumer exposure to the Chemicals of Concern. Assessments completed after 2014 will have to be prepared by DTSC-certified specialists. Should the manufacturer decide to continue manufacturing the Priority Product with the Chemical(s) of Concern despite the assessment, DTSC will impose “regulatory responses” to limit environmental impacts and consumer exposure. Noncompliance with the new regulations may result in fines and penalties, among other things.

“I think there might be a misconception out in the public, that if it’s legal to buy, it must be safe to use, that somebody is looking out for us,” said DTSC Director Deborah Raphael in a series of videos posted to DTSC’s website. “Unfortunately, it’s not completely the case.” Raphael calls the new Consumer Products Safety initiative a “re-look” at the Federal regulatory scheme, and acknowledges there will be legal challenges.

Manufacturers may seek a “de minimus” exemption, which, generally speaking, will exempt from regulation products containing less than 0.01% by weight of the most hazardous Chemicals of Concern and 0.1% of other listed chemicals. DTSC may impose even more stringent de minimus levels on a chemical-by-chemical basis. Products such as food, medical devices, dangerous prescription drugs, and pesticides, already regulated under the Health & Safety Code, will also be exempt. Other regulated products are exempt so long as the existing regulations provide equivalent or greater protection. Trade associations and other consortiums of responsible parties will be permitted to fulfill the alternative analysis mandate as a group.

Nevertheless, the new regulations could have a substantial impact on manufacturers, importers, and retailers of products sold in California, forcing redesigns or removal of products from the market altogether. DTSC seeks nothing less than the elimination of all toxic chemicals from consumer products where their presence is not absolutely necessary.

The public comment period opened last week and is expected to continue to December 31. Background information, including comments from Director Raphael and links to the draft regulations, can be found at http://www.dtsc.ca.gov/SCPVideo.cfm.