After several years of stops and starts, and well after the statutory deadline, California’s Department of Toxic Substances Control (DTSC) has issued its “Safer Consumer Products” regulations, which took effect October 1, 2013.  Better known as the Green Chemistry program, this far-reaching and complex program presents a fundamental shift in regulating use of chemicals in consumer products.  It is important to understand that, like Proposition 65, this reaches to manufacturers located outside of California if they make products that could be sold in California.  However, unlike Proposition 65, compliance is not limited to providing warnings on products containing certain chemicals.  These regulations will force manufacturers of an initially-small list of products to analyze alternatives to using certain chemicals in their products and authorizes DTSC to impose a range of regulatory responses, up to and including prohibition of sales of a product into California. 

The initial list of “Candidate Chemicals” has already been posted on DTSC’s website.  This list is compiled from lists of chemicals previously established by other regulatory authorities, including the Proposition 65 “Governor’s List” of carcinogens and reproductive toxins.  The next significant step will be for DTSC to issue a proposed initial list of “Priority Products” that contain those chemicals.  The initial Priority Products list is limited by the regulations to no more than five products, although future iterations of the Prior Products list won’t have such limitations.  The proposed initial Prior Products list is to be issued within 180 days after the effective date of October 1, 2013.  The establishment of the initial Priority Products list will be a rulemaking action under California’s Administrative Procedures Act, so there will be opportunity for review, comment and challenges, which will likely delay the date that the list is effective.  Once that list becomes effective, it will be the obligation of the manufacturers of those Priority Products to notify DTSC that they make a listed Priority Product and are subject to the rest of the program. 

Manufacturers of listed Priority Products will be required to prepare an Alternatives Analysis (AA) in a two-step process, first submitting a preliminary AA report to DTSC for review and comment within 180 days of the listing as a Priority Product, and a final AA report one year after the preliminary report is approved by DTSC.  Based upon the AA, DTSC can then impose one or more “regulatory responses” ranging from requiring submittal of additional information up through restrictions on use of a chemical in the product (reformulation) and even prohibition of sales of the product in California. 

While this summary may seem complex, it pales in comparison to the actual regulations, which take up 72 pages in the copy posted on DTSC’s website and cover the fundamental elements summarized above in much more detail, as well as many tangential issues. Given the decision to limit the initial Priority Products list to 5 or less products, the full brunt of these regulations will fall on only a few manufacturers at first.   Retailers and others in the distribution chain can have responsibilities if the manufacturer does not comply.  However, counting on the odds and hoping someone else’s product gets picked first is not an effective compliance strategy.  It will be important for anyone manufacturing a product that is likely to be sold in California to track this program as it is rolled out to anticipate how it will impact them as it expands beyond the initial and limited list of Priority Products.