• California Proposes Sweeping Regulations of Chemicals in Consumer Products
  • August 4, 2010
  • Law Firm: Hunton Williams LLP - Richmond Office
  • Effective as of September, 2008, Assembly Bill 1879 mandates that California’s Department of Toxic Substances Control (“DTSC”) issue regulations that could ban the sale of certain consumer products based on the chemicals used in those products.  On June 23, 2010,  the DTSC issued draft regulations pursuant to Assembly Bill 1879.  Under the draft regulations, product manufacturers, importers and private labelers will be jointly and severally responsible for assessing the risks and possible alternatives for chemicals in their products.  Both the production and the end-of-life management of certain products will be governed by the regulations once they become final.  The regulations are scheduled to take effect on January 1, 2011.

    The draft regulations identify certain “chemicals of concern” and require the DTSC to list any product that is or contains a “chemical of concern” as a “product under consideration.”  The DTSC is further required to prioritize the list of “products under consideration” by taking into account each product’s projected sales, the volume of the product currently in use, the type and extent of consumer use that could result in adverse health impacts, and other enumerated factors.  If the DTSC determines that a product is a “priority product,” the manufacturer of the product will be required to notify California retailers of such designation.

    Furthermore, manufacturers of priority products are required to perform “alternative assessments” for the “chemicals of concern” contained in those products.  Broadly speaking, the goal of the “alternative assessments” is to determine whether there are safer alternatives to the “chemical of concern” contained in the “priority product,” or to demonstrate to the DTSC that the concentration of the “chemical of concern” is de minimis.  Notably, the DTSC can ban the sale of a “priority product” in California if it determines that an economically feasible, safer alternative to a “chemical of concern” is available — even if this determination is contrary to the manufacturer’s alternative assessment.

    The draft regulations also require manufacturers of certain products to fund and/or implement end-of-life disposal programs for those products.  For products that must be managed as a hazardous waste at the end of their useful life, manufacturers must establish, fund and maintain “take-back” programs.  Such programs must include a “Product Stewardship Program” outlined on the manufacturer’s website, public education programs and cooperative measures with retailers in developing collection sites for recycling.

    The breadth of requirements under the draft regulations could present significant hurdles for product manufacturers.  Given the DTSC’s power to ban certain products under the draft regulations, manufacturers should consider now whether their products, as currently manufactured, contain “chemicals of concern.”  Since 1986, a California law (known as Proposition 65), has required that consumers must receive a warning prior to exposure to products that contain chemicals listed by the state as known to cause cancer or birth defects or reproductive harm.  It is likely unfeasible, however, to manufacture “California products” that comport with the regulations in addition to products that can be sold in unregulated markets.  Thus, product manufacturers may face a Hobson’s choice of complying with the “Green Chemistry” regulations and the mandates of Proposition 65 or forgoing business in one of the largest economies in the world.  Furthermore, the joint and several responsibility for compliance between manufacturers, importers and private labelers will likely require an unprecedented level of cooperation between those entities.