Sunday BIZ: Getting Ready For California’s 2013 Product Safety Regulations

By Cordon Baesel and Stefanie Warren

Safer Consumer Products in California: Manufacturer Duties in 2013 and Beyond

By 2013, California is expected to adopt final regulations governing the chemical composition of consumer products sold throughout the State.  As part of its "Green Chemistry Initiative" launched in 2009, the California Department of Toxic Substances Control (DTSC) recently proposed Safer Consumer Products Regulations (SCP Regulations). The SCP Regulations will require manufacturers to identify potentially harmful chemicals in their products and examine the viability of alternative ingredients. If alternatives are not feasible, DTSC will identify appropriate actions so products can be safely used, disposed of, or phased out. The draft SCP Regulations and other Green Chemistry information are online at http://www.dtsc.ca.gov/SCPRegulations.cfm.

California Chemicals of Concern

The SCP Regulations will apply to all products that contain certain Chemicals of Concern (COC's) that are placed into the stream of commerce in California.  The California COC's are derived from a an international list of chemicals hazardous to human health or with known environmental or toxicological properties.  For example, the carcinogens and reproductive toxicants regulated by California's Proposition 65 (800+ chemicals) are identified as COC's.

SCP Regulations: Prioritize, Assess, and Respond to COC's

The SCP Regulations require DTSC to develop a framework and process to: (A) Identify and prioritize COC's in consumer products; (B) Assess potential exposure/hazard levels of COC's, including the availability of alternative chemicals (and their hazards) for specific products; and (C) Develop appropriate regulatory responses, based on the  "alternatives analyses" for COC's, ranging from product-labeling to end-of-life management requirements to outright prohibitions on consumer sales. Once the SCP Regulations are in place, either the manufacturer, importer, or retailer is obligated to comply with the applicable use and labeling obligations.  The responsible party must also provide information about the COC's on its website and packaging or written materials or point of display (this may include a webpage).

Potential Impacts on California Commerce

There are many unresolved technical and scientific issues posed by the current form of SCP Regulations. In fact, California Legislators recently demanded Governor Brown stop the process,  and require a comprehensive analysis of the economic impacts from the SCP Regulations.  This demand may delay final adoption of enforceable requirements, but some form of SCP Regulations are required by law. They will impact companies selling consumer products in California. At the same time, compliance with SCP requirements may provide an important component for consumer marketing, while promoting scientific innovation in California. DTSC's Director Debbie Raphael identified the potential upside when she recently stated, "Public health and the environment [will] benefit by lessening our use of toxic chemicals, and California companies get a significant boost into [the newly emerging] markets that are rapidly expanding." The ultimate benefits for consumers should also be tangible. The Green Chemistry Initiative helps California: Reduce its overall chemical footprint; Minimize adverse impacts on its consumers; and Promote the overall health of our shared environment.

For further information on these evolving legal requirements applicable to consumer products, please contact Cordon Baesel (cbaesel@mckennalong.com) or Stefanie Warren (swarren@mckennalong.com) at McKenna Long & Aldridge in San Diego, or visit http://www.mckennalong.com/practices-Green-Chemistry.html.