• DTSC Releases Draft Initial Priority Product Work Plan
  • September 19, 2014
  • Law Firm: Bergeson Campbell P.C. - Washington Office
  • On September 12, 2014, the California Department of Toxic Substances Control (DTSC) released its much anticipated draft Initial Priority Product Work Plan under the Safer Consumer Products Regulations. The Regulations require that DTSC, by October 2014, develop an Initial Priority Product Work Plan that describes product categories it will use to evaluate and identify product-chemical combinations to be added to the Priority Products. The Work Plan is available online and more detailed memoranda about the Regulations and the Work Plan are available online.

    DTSC is seeking comments on its Work Plan, which can be submitted using the California Safer Products Information Management System (CalSAFER) until October 13, 2014. DTSC also is holding two workshops, one in Sacramento on September 25, 2014, and one in Cypress on September 29, 2014.

    Seven Priority Products Categories Identified

    The purpose of the Work Plan is to provide a "level of predictability to potential manufacturers, importers, retailers, and other stakeholders regarding the types of products that can be considered for evaluation over the next three years."

    DTSC stated it prioritized product categories with the following attributes:

    • Product categories with products with clear pathways for dermal, ingestion or inhalation exposure
    • Product categories with chemicals found in biomonitoring studies 
    • Product categories with chemicals observed in indoor air quality studies 
    • Product categories that include product-chemical combinations that impact sensitive subpopulations 
    • Product categories that contain chemicals that have aquatic resource impacts and/or which have been observed through water quality monitoring
    DTSC has listed seven product categories, and for each category has identified subcategories, examples of the types of potential products, and examples of potential Candidate Chemicals.

    The categories identified by DTSC are as follows:

    Category: Beauty, Personal Care, and Hygiene

    Subcategories: Skin Care Products, Personal Hygiene Products, Hair Care Products, Cosmetics/Fragrances

    Examples: Body wash and soaps; deodorants; lip balms and gloss; lotions; ointments; pomades; hair care products; cosmetics; nail care products

    Potential Candidate Chemicals: Aldehydes, formaldehyde; alkyl phenols and ethoxylates; azo dyes, coal tars, lead, and lead acetate; phthalates; triclosan; toluene

    Category: Building Products

    Subcategories: Flooring, Painting, Sealants/Fillers/Adhesives

    Examples: Adhesives and glues; carpeting; caulking; engineered wood; paints and primers; paint and graffiti removers and cleaners; plywood subfloors; compressed wood flooring products; roof coatings; sealants; stains and varnishes; vinyl flooring

    Potential Candidate Chemicals: Brominated or chlorinated organic compounds, organophosphates; isocyanates; metals, such as Chromium VI; perfluorinated compounds; phthalates; volatile organic compounds, such as formaldehyde, n-hexane, n-methyl pyrrolidone, toluene

    Category: Cleaning Products

    Subcategories: Fresheners/Deodorizers, Cleaners, Laundry, Surface Care

    Examples: Air fresheners; floor cleaners; oven cleaners; bathroom cleaners; carpet cleaners; detergents; floor waxes; general purpose cleaners; scouring cleaners; spot removers; window cleaners

    Potential Candidate Chemicals: Alkyl phenol and ethyoxylates; hydrogen fluoride; phthalates; triclosan; volatile organic compounds, such as n-hexane, methyl ethyl ketone, n-methyl pyrrolidone, toluene, and xylene

    Category: Clothing

    Subcategories: Full Body Wear, Lower Body Wear, Sleepwear, Sportswear, Underwear, Upper Body Wear/Tops

    Examples: Full body wear; lower body wear/bottoms; sleepwear; sportswear; underwear; upper body wear

    Potential Candidate Chemicals: Alkyl phenol and ethoxylates; aromatic amines and azo dyes; chlorinated paraffins, halogenated compounds, and organophosphates; perfluorinated compounds, formaldehyde; phthalates; triclosan

    Category: Household/Office Furniture/Furnishings

    Subcategories: Bedding, Fabric/Textile Furnishings, Household/Office Seating

    Examples: Bedding; fabric and textile furnishings; seating/sofas

    Potential Candidate Chemicals: Brominated or chlorinated organic compounds, organophosphates; perfluorinated compounds

    Category: Office Machinery (Consumable Products)

    Subcategories: Inks and Toners, Specialty Paper

    Examples: Printer inks; specialty paper; toner cartridges

    Potential Candidate Chemicals: Azo dyes; bisphenols; phthalates; volatile organic compounds, such as benzaldehyde, hexanol, toluene, and xylene

    Category: Fishing and Angling Equipment

    Subcategories: None identified

    Examples: Fishing weights and gear

    Potential Candidate Chemicals: Metals

    These categories, presuming they are included in the Work Plan after it is issued in final, will be the focus of DTSC's efforts for the next three years as DTSC narrows these broad categories to specific product-chemical combinations that warrant consideration as potential Priority Products.

    Once the Work Plan is issued in final, DTSC states it will begin a phase of research and dialogue with affected stakeholders about these product categories.

    Commentary

    The Work Plan is helpful in identifying categories of products of interest to DTSC and potential Candidate Chemicals. There are no major surprises with these categories, except perhaps the inclusion of fishing and angling equipment, and the fact that there are several categories that DTSC could have identified but did not, including products in the children's toy industry and the automotive industry, both of which were rumored to be of significant interest to DTSC. DTSC also provides useful guidance by stating that it anticipates selecting a relatively small number of chemical-product combinations, between five and ten per year, over the next three years.

    While the Work Plan is intended to provide predictability to entities about potential Priority Products, there are limitations to how helpful the Work Plan will be. DTSC states in regard to the Beauty, Personal Care, and Hygiene Products category, for example, that the potential Candidate Chemicals listed in the Work Plan "are not intended as a comprehensive list of Candidate Chemicals in this product category." If any Candidate Chemical could be considered by DTSC as it evaluates these product categories, the Work Plan approach arguably does not provide sufficient guidance to companies trying to determine whether they could be affected by a Priority Product listing in the next few years. In addition, some of the categories are so large as to not provide companies with a focused sense of whether they may be affected. DTSC states, for example, that a California Department of Public Health Safe Cosmetics Program database included over 17,000 products that contained one or more chemicals that appear on California's Proposition 65 list of carcinogens and reproductive toxicants. Many of those substances are also Candidate Chemicals, which means there are potentially thousands of products under consideration in just one of the subcategories DTSC has identified.

    DTSC will be accepting comments until October 13, 2014. DTSC also is holding two workshops on September 25, 2014, and September 29, 2014, to present an overview of the draft Work Plan and will explain the process by which Priority Products will be listed.

    It is important for manufacturers, importers, and retailers of consumer products in the categories listed by DTSC in the Work Plan to determine if those products contain any Candidate Chemicals, including but not limited to those identified by DTSC in the Work Plan. Engaging in the process early, including submitting comments, can provide DTSC with important information regarding these products, the purpose for including any Candidate Chemicals in these products, and what issues may arise if a product is identified as a Priority Product, such as whether there are any known alternatives that are economically feasible, technologically feasible, and functionally acceptable.