California's DTSC Releases Draft Priority Product Work Plan Under State's Green Chemistry Law

The California Department of Toxic Substances Control (DTSC) has released a draft Priority Product Work Plan as part of its Green Chemistry law, identifying six product categories from which priority products will be selected over the next three years for priority product rulemaking.  The Work Plan outlines some of the considerations behind the DTSC’s product category selections.  

The categories of products proposed for consideration are:

• Beauty, personal care, and hygiene products;
• Building products (with a focus on paints, adhesives, sealants and flooring);
• Household and office furniture and furnishings (with a focus on flame retardants and stain resistant chemicals);
• Cleaning products;
• Clothing (including chemicals or chemical classes added to clothing);
• Fishing and angling equipment; and
• Office machinery (consumable products).

The draft Work Plan also describes Product Category Screening approaches, declining to adopt a prescriptive process for identifying priority products.  These approaches include:

• the Hazard Trait and Endpoint Approach;
• the Route of Exposure Approach;
• the Chemical Prioritization Approach;
• the Evidence of Exposure Approach;
• the Sensitive Subpopulation Approach;
• the Functional Use Approach; and
• the Existing Research/Nomination Process Approach.

DTSC says that all of these approaches were used to develop the draft Work Plan Priorities focused on product categories with clear pathways for dermal, ingestion, or inhalation exposure; product categories containing chemicals found in biomonitoring studies; product categories containing chemicals observed in indoor air quality studies; product-chemical combinations that have impacts on sensitive subpopulations; and product categories containing chemicals that have aquatic resource impacts or that have been observed through water quality monitoring.

Two workshops will be held to discuss the draft Work Plan.  The first will be held on September 25, 2014, from 9:30 a.m. to 12:30 p.m. at the California Environmental Protection Agency’s Sacramento headquarters (Cal/EPA Headquarters Building, DTSC Headquarters, Byron Sher Auditorium, 1001 I Street, Sacramento, California 95814).

The second will be held at the DTSC’s Cypress, California regional office on September 29, 2014, from 12:30 p.m. to 3:30 p.m. (DTSC Cypress Regional Office, Conference Room, 5796 Corporate Avenue, Cypress, California 90630).  Comments may be filed here until October 13, 2014, at 5 p.m. Pacific Time.

Three Initial Priority Products were identified in March 2014:

• Children’s foam-padded sleeping products with TDCPP
• Spray polyurethane foam systems containing unreacted diisocyanates; and
• Paint stripper with methylene chloride.

Under the California Green Chemistry regulatory framework, priority products will be adopted into regulations following appropriate notice and comment procedure, and then manufacturers must identify alternatives through the alternatives assessment process.  Subsequently, the state can adopt additional regulations ranging from requiring submittal of additional information, labeling, restrictions or bans on the chemical of concern, and funding challenge grants to identify alternatives. 

The DTSC describes its approach as “part of a paradigm shift in the manufacturing sector toward safer ingredients.”  The agency “anticipate[s] the emergence of new chemicals in commerce, new toxicological methods, and new scientific tools to address or close data gaps”; and “will encourage wider adoption of green chemistry approaches to product development.” 

With reform to the federal Toxic Substances Control Act (TSCA) remaining uncertain, state efforts such as California’s will necessarily affect companies and supply chains nationally.  In the meantime, private initiatives focused on evaluating chemical uses continue.  For example, Walmart and Target, the two largest U.S. retailers, joined with Forum for the Future to sponsor the Beauty and Personal Care Products Sustainability Summit in Chicago in early September, pushing supply chains toward transparency and the use of product ingredients that raise the fewest concerns for human health and the environment.  

For more information on green chemistry and other product safety initiatives, contact Sheila A. Millar at millar@khlaw.com or +1 202.434.4143; J.C. Walker at walker@khlaw.com or +1 202.434.4181; or Diana Graham at graham@khlaw.com or +1 415.948.2805.