Following up on the breakthrough amendments to the federal Toxic Substances Control Act (TSCA), California has reasserted its intention to proceed with its Green Chemistry Initiative to require substitution of safer chemicals in consumer products. On July 15, 2016, the California Department of Toxic Substances Control (DTSC) released its first proposed "Priority Products List" regulations under the California Safer Consumer Products (SCP) Program. The proposed regulations would add children's foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP) or tris(2-chloroethyl) phosphate (TCEP) as its first Priority Product. But as discussed later, there is an interesting twist to DTSC's choice of this particular Priority Product.
Under the proposal, DTSC defines "Children's foam-padded sleeping products containing TDCPP or TCEP" as "assembled products designed for children, toddlers, babies or infants to nap or sleep on, that include polyurethane foam mats, pads or pillows containing TDCPP or TCEP which may be covered or upholstered" and includes:
- Nap mats;
- Soft-sided portable cribs;
- Play yards or playards;
- Infant travel beds;
- Portable infant sleepers;
- Nap cots;
- Infant sleep positioners;
- Bedside sleepers;
- Co-sleepers; and
- Baby or toddler foam pillows.
It does not include:
- Mattresses subject to Consumer Product Safety Commission requirements;
- Furniture subject to the requirements of California Technical Bulletin 117-2013; and
- Add-on child restraint systems used in vehicles and aircraft because they are required to meet federal flammability standards.
Reasons for Listing
According to the Initial Statement of Reasons (ISOR) for the proposed regulations, DTSC selected children's foam-padded sleeping products containing these flame-retardant chemicals of concern as a Priority Product due to the potential exposure which may "contribute to or cause widespread or significant adverse impacts to people, particularly to children, families and workers, or wildlife." The ISOR further states that "There are no state or federal legal requirements to include chemical flame retardants in children's foam-padded sleeping products that are primarily marketed for use by children and commonly used in homes and day care centers."
Preliminary Alternatives Analysis
Responsible entities must submit their Preliminary Alternatives Analysis Report 180 days after the effective date of the regulations. For a discussion on DTSC's Alternatives Analysis Guidance, see our October 2015 client alert posted on the Green Chemistry portal web page at http://www.mofo.com/green-chemistry.
Other Priority Products
In addition to the children's foam-padded sleeping products containing TDCPP and TCEP, the other two Priority Products that were listed on DTSC's initial list were:
- Paint and varnish strippers containing methylene chloride and
- Spray polyurethane foam systems containing unreacted methylene diphenyl diisocyanates.
These will be handled under separate rulemaking proposals.
Public Hearing and Comment Period
DTSC is scheduled to hold a public hearing on the proposed regulations on August 29, 2016 and it will accept comments until then. A copy of the proposed regulations, related materials and additional useful information can be found on our Green Chemistry portal web page at http://www.mofo.com/green-chemistry.
Relationship to TSCA Reform and Proposition 65
California's action immediately follows the long-awaited amendments to overhaul TSCA which had bipartisan support in Congress and from the Obama Administration. (See MoFo client alert, "Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act," dated June 22, 2016, at http://www.mofo.com/green-chemistry.) Industry supported the amendments in part to preempt individual state action that risked creating a checkerboard of conflicting requirements for chemicals in consumer products. (See MoFo client alert, "The Toxic Substances Control Act Amendments May Do Little to Relieve California Headaches for Businesses," dated July 11, 2016, at http://www.mofo.com/green-chemistry.) DTSC's action is a strong statement that California intends to proceed with its regulations of those products without waiting for EPA to act under its new TSCA authority.
The interesting twist however arises from prior settlements in California's Proposition 65 cases involving these products and chemicals. Leading industry defendants, represented by Morrison & Foerster, settled those cases with agreements that resulted in the widespread removal of TDCPP and TCEP from the subject products. With those chemicals already eliminated in the Priority Products, DTSC may be proceeding with its Green Chemistry listing because of a lack of coordination with Proposition 65. A more sophisticated reason may be DTSC's desire to use its first Priority Product listing as a test run to promulgate its new regulations on a limited number of regulated parties, those that have not already substituted the subject chemicals, and to achieve an early success for its fledgling program.
Regardless of DTSC's reasons, the result is that consumer product manufacturers will continue to face both federal and state chemical rules governing their products in California.
Lois Miyashiro, an environmental analyst in the firm's San Francisco office, assisted in the preparation of this client alert.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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