California DTSC Finalizes Green Chemistry Playbook

Green Products Update

Date: April 23, 2015

Manufacturers, retailers, and importers of beauty, personal care, and hygiene products; building products; household and office furniture and furnishings; cleaning products; clothing; fishing and angling equipment; and consumable office machinery should pay close attention to the Priority Product Work Plan recently released by California’s Department of Toxic Substances Control (DTSC). Those products will be the focus of the DTSC’s research efforts through 2017, the culmination of which may result in the products being forced out of the California marketplace if offending chemical ingredients are not removed.1

Under California’s Safer Consumer Products Act (SCPA), the main pillar of California’s “Green Chemistry Initiative,” the DTSC is directed to identify and prioritize chemical ingredients in consumer products that may pose health concerns, and to determine how best to limit or reduce potential hazards presented by those chemicals. The SCPA acts to “accelerate the quest for safer products.” The regulations, which are applicable to consumer products that enter the stream of commerce in California, require manufacturers, retailers, and importers to seek safer alternatives to harmful chemicals widely used in products. The regulations offer California “the opportunity to lead the way in producing safer versions of goods already in demand around the world.”

On April 16, 2015, the DTSC released its Priority Product Work Plan, which classifies seven product categories and identifies specific example products within each category that will be the focus of the DTSC’s research through 2017, which may result in the products being banned in California. If the DTSC determines that a chemical ingredient should be removed from a product, it can impose regulations, the first of which is to require the manufacturer, retailer, and importer to conduct an alternative assessment to evaluate whether the chemical can be removed and replaced.

The Work Plan does not itself regulate the products; its purpose is to provide predictability regarding future regulatory actions to be taken by the DTSC. It also provides a “general explanation of the decision to select the identified product categories for evaluation,” information that should encourage manufacturers to engage in the product prioritization process moving forward. It also should encourage retailers and importers to have discussions with their manufacturers.

View a chart listing the product categories, examples of products within each category, and the chemicals potentially in those products about which the DTSC is concerned.

Companies that manufacture, sell, or import products from any of the categories listed should determine whether any of their products contain any of the candidate chemicals. If so, they should monitor the DTSC’s research efforts and prepare for the possibility of increased attention. They also should start considering whether alternative ingredients are technically and economically feasible. Likewise, manufacturers and distributors of the candidate chemicals should be aware that their customers may be facing increased regulation. Everyone within the supply chain – from manufacturers of the candidate chemicals to retailers selling products in the listed categories – should review their supply agreements, representations and warranties, terms and conditions, and other sales and purchasing documentation to determine whether any revisions are necessary to mitigate or transfer the risk that results from the DTSC’s increased scrutiny.

FOR MORE INFORMATION

For more information, please contact:

Timothy J. Coughlin
216.566.5523
Tim.Coughlin@ThompsonHine.com

Heidi B. Goldstein
216.566.5559
Heidi.Goldstein@ThompsonHine.com

William J. Hubbard
216.566.5644
Bill.Hubbard@ThompsonHine.com

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

© 2015 THOMPSON HINE LLP. ALL RIGHTS RESERVED.



1The DTSC previously identified three Priority Products on which it is currently focusing: (1) spray polyurethane foam (SPF) systems containing unreacted diisocyanates; (2) children’s foam padded sleeping products containing tris (1,3-dichloro-2-propyl) phosphate or TDCPP; and (3) paint and varnish strippers and surface cleaners with methylene chloride.