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Law firm comments on new California green chemistry product regulations

Morrison & Foerster LLP (MoFo) : 16 March, 2014  (Technical Article)
Rollout of major green chemistry regulations have begun in California with the announcement of the first three priority products to be regulated under the state’s Green Chemistry program. Children’s foam padding sleeping products containing the flame retardant TDCPP; spray polyurethane foam systems containing unreacted diisocyanates; and paint strippers, varnish removers, and industrial-strength surface cleaners containing methylene chloride will now fall under the California Department of Toxic Substances Control’s (DTSC) Safer Chemical Product regulations, affecting retailers and manufacturers across the state.
In its announcement, DTSC stated that the selection was based on three primary criteria: (1) the potential for the chemical to create significant harm to the public or the environment; (2) the potential for the product to create a pathway for exposure to the chemical of concern; and (3) whether the chemical exposure impacts sensitive subpopulations, such as children or the elderly. 
By announcing the first priority products, DTSC has taken the next major step forward to implement its innovative Green Chemistry program enacted in 2008. The law seeks to regulate toxic chemicals in consumer products and to reduce or eliminate those hazards, in part by encouraging the elimination or substitution of safer chemical ingredients. While the initial list of priority products only contains three product/chemical pairings, DTSC plans to expand the list over time to cover a significantly greater number of products and chemicals. Additional products to be regulated will be announced by DTSC in October 2014. 
The announcement is the long-awaited first step in the implementation of the Green Chemistry program, enacted in 2008. The most sweeping legislation of its kind in the country, when it is fully implemented the programme will affect all products made or sold in California. Peter Hsiao, partner at Morrison & Foerster and head of the firm’s Environment and Energy Group and Green Products and Chemicals team, addresses what the new regulations mean in the brief article below. 
The law has four steps, first directing DTSC to identify lists of chemicals of concern, and second to prioritize consumer products containing those chemicals for regulation. The third step is for the manufacturer of the consumer product or other responsible entities to prepare an analysis for submission to DTSC to describe alternatives to mitigate exposure to the chemical of concern at all points during the product’s lifecycle. The fourth step is a regulatory response from DTSC, which can include content or use limitations, mandatory recycling programs or a ban on the use of the chemical, among other options. The details of the regulation and additional useful guides can be found at the Green Chemistry portal web page at 
It is important to note that this was an informal announcement and the formal rulemaking and public comment period will likely begin in late summer. Once the public comment period and finalization of the priority products list has ended – expected to take between 3 and 6 months – manufacturers will be notified and must notify DTSC that its product appears on the product list. That party must then choose between:
(i) removing the chemical of concern without substituting any other chemical on DTSC’s list of chemicals of concern; 
(ii) cease sales of the product to California;
(iii) prepare the analysis of alternatives for submittal to DTSC. The DTSC may seek civil penalties and injunctive relief against companies that fail to comply with these requirements. 
Manufacturers and retailers are now on notice to participate in the rulemaking process and prepare for potentially difficult decisions regarding reformulation or limiting the sales of these products in California.
Failure to comply may lead to civil penalties or injunctive relief against the responsible companies. 
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