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October 1, 2013

DTSC Safer Consumer Products Regulations Effective Today

Bergeson & Campbell, P.C.

The California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations) take effect today. Memoranda providing background information on the Regulations are available online. The Regulations and Final Statement of Reasons are available online.

The most onerous requirements for “responsible entities” (i.e., manufacturers, importers, assemblers, and retailers) will not be felt until DTSC identifies the first Priority Products, that is, a consumer product containing a listed Candidate Chemical for which responsible entities must conduct an Alternatives Analysis (AA) to determine how best to limit potential exposures or the level of potential adverse public health and environmental impacts posed by the substance in the Priority Product.

There are, however, initial steps that companies can take to understand how these Regulations may affect operations in the near future. DTSC has created a Safer Consumer Products Web Portal where it has posted, and will continue to add, information pertinent to the Regulations.

  • Review the Candidate Chemicals List: DTSC is required to publish, within 30 days after the effective date of the Regulations, a Candidate Chemicals List. DTSC released the list on September 28, 2013. The List is divided into two parts.
    • Prior to January 1, 2016, DTSC will consider a limited scope of Candidate Chemicals when reviewing product-chemical combinations as Priority Products. This Initial Candidate Chemicals List contains 164 substances, although there are in fact more substances than this because many of the substances listed are part of a group and there can be several individual members of a group or class of chemicals that met the regulatory criteria for inclusion on the Initial Candidate Chemicals List.
    • After January 1, 2016, DTSC can evaluate substances from the full Candidate Chemicals List, containing approximately 1,200 substances.
    Companies should begin now to review the Initial Candidate Chemicals List to determine if any of their consumer products contain one of these substances.
  • Consider Petition for Delisting: If a company identifies a substance that is listed on the Initial Candidate Chemicals List or full Candidate Chemicals List but there are reasons to believe the criteria for listing are not met, the Regulations establish a process by which a person can petition DTSC to remove one or more chemicals from the Candidate Chemicals List. Initially the Regulations included a provision that would only allow a deletion if the substance was no longer listed on any of the lists from which the Candidate Chemicals List was derived. This was deleted in the final Regulations as “unnecessary and confusing since a chemical that is removed from all lists specified in section 69502.2(a) on which the chemical previously appeared would automatically be removed from the Candidate Chemicals List.” There thus appears to be potentially a broader basis to remove a chemical than the fact that it is not listed on one of the source lists.
    It should be noted there also is a possibility to petition DTSC to remove an entire chemical list from the sources from which the Candidate Chemicals List is derived, but such petitions cannot be filed until at least three years from the effective date of the Regulations.
  • Determine Responsible Entity Roles and Potential Consolidation of Efforts: It will be important for companies with consumer products that may be identified as Priority Products to identify other entities similarly affected and determine the ability to consolidate efforts (e.g., through a consortium) in conducting an Alternatives Analysis (AA). Considering the limited time (i.e., 60 days) DTSC provides for a responsibility entity to respond to the identification of a Priority Product, working out these relationships now may be very prudent. Companies also could begin to review their supply chains to ensure that all entities, whether they are considered a manufacturer, importer, retailer, or assembler, understand their respective roles with regard to a particular Priority Product.
  • Review Priority Product Work Plan, When Available: DTSC is required to develop, within one year of the effective date of the Regulations, an Initial Priority Product Work Plan that “identifies and describes the product categories that the Department will evaluate to identify product-chemical combinations to be added to the Priority Products list during the three (3) years following the issuance of the work plan.” The Work Plan is intended “to provide a level of predictability to responsible entities and other stakeholders regarding the types of products that could be considered for evaluation of product-chemical combinations to be added to the Priority Products list during the next 3-year period.” The Work Plan will thus provide companies with important information regarding DTSC’s direction with regard to potential Priority Products.
  • Review and Comment on DTSC AA Guidance, When Available: Before DTSC issues the final Initial Priority Products List, it is required under the Regulations to make available on its website guidance materials to assist persons in performing AAs. DTSC has stated that draft guidance documents could be available at the end of 2013, with a final version, after allowing a notice and comment period, available by the end of 2014. It will be important for companies to review and comment on these guidance documents to ensure that the AA process proceeds as efficiently and proficiently as possible.
  • Do Not Rely on Legal Challenges to Make This All Go Away: Litigation is likely. Relying on a favorable outcome and doing nothing now is unwise.

Bergeson & Campbell, P.C. professionals are deeply engaged in Safer Consumer Products Regulations issues and would be pleased to assist if you have any questions.