Developments in State Chemicals Policy:
Identifying and Regulating Priority Chemicals
California
In 2008, the California legislature enacted a law establishing a framework for identifying, prioritizing, evaluating, and regulating chemicals of concern in consumer products. California Health & Safety Code §§25251-25257.1.
Identification of priority chemicals. Under the law, the Department of Toxic Substances Control (DTSC) must adopt regulations that establish a process for identifying and prioritizing "chemicals of concern" in consumer products. The prioritization process must include consideration of the volume of the chemical in commerce in the state, the potential for exposure to the chemical in a consumer product, and the potential impact of the chemical on sensitive sub-populations, such as children and infants. The DTSC is directed to reference and use any existing, authoritative chemical prioritization work to the maximum extent feasible. Cal. Health & Safety Code §§25252, 25252.5.
Action on priority chemicals. For chemicals that are identified as "chemicals of concern," the law requires the DTSC to adopt regulations governing the evaluation of these chemicals in order to determine how to best limit exposure and to reduce the level of hazard posed by the chemical. This review process must include an evaluation of the potential alternatives to the chemical and of critical exposure pathways, using life cycle assessment tools that analyze various environmental, public health, economic, and product performance impacts specified in the law. Cal. Health & Safety Code §§25253, 25252.5. As of January 2023, in lieu of requiring that an analysis of alternatives be conducted by the responsible entity (e.g., manufacturer, importer, retailer), the department “may instead rely on all or part of one or more applicable [and “reliable” according to specified criteria] publicly available studies or evaluations of alternatives to the chemical of concern under consideration in a consumer product, in existence at the time of consideration, and may proceed directly to a regulatory response.” Any such existing study must meet certain reliability criteria, and the agency must provide a public notice and comment opportunity in connection with the proposal to rely on an existing study for a regulatory response. 2022 Cal. Senate Bill 502, amending Cal. Health & Safety Code § 25253.” The DTSC's regulations must also specify the range of regulatory responses that the department may initiate following its evaluation of alternatives. Pursuant to the law, possible responses include: not requiring any action; requiring submission of additional information; requiring the use of consumer product labeling; restricting or prohibiting the use of a particular chemical in a consumer product; requiring that access or exposure to a chemical be limited; requiring manufacturers to manage end-of-life disposal or recycling of a chemical; and requiring the funding of green chemistry challenge grants when no feasible safer alternative exists. Cal. Health & Safety Code §25253(b).
Agency Regulations. The DTSC regulations took effect October 2013 and are phased in over several years. 22 Cal. Code Regs. 69501 et seq. The regulations establish a list of about 1,200 Candidate Chemicals and specify a process for DTSC to identify additional Candidate Chemicals. The regulations require DTSC to evaluate and prioritize product/Candidate Chemical combinations to develop a list of "Priority Products" for which Alternatives Analyses must be conducted. The regulations require responsible entities (manufacturers, importers, assemblers, and retailers) to notify DTSC when their product is listed as a Priority Product and perform an Alternatives Analysis for the product and the COCs in the product. The regulations also require DTSC to identify and require implementation of regulatory responses designed to protect public health and/or the environment, and maximize the use of acceptable and feasible alternatives of least concern.
In 2014 the DTSC published a Draft Initial Priority Products List that includes three products: (1) children’s foam padded sleeping products containing TCEP or TDCPP flame retardants; (2) spray polyurethane foam systems containing unreacted methylene diphenyl diisocyanates; and (3) paint strippers with methylene chloride. The agency has issued a final regulation for the first product, effective July 2017, requiring manufacturers to submit a notification to the agency. A regulation has been adopted for the second product, effective July 2018, also requiring manufacturers to submit notification to the agency. A regulation was adopted for the third product, effective January 2019.
[Note that a 2018 California law (Cal. Bus. & Prof. 19101) prohibits, beginning January 2020, any person from selling or distributing in the state any new juvenile products, mattresses, or upholstered furniture that contains, flame retardant chemicals, as defined in the law, at levels above 1,000 parts per million.]
See the DTSC's Green Chemistry Initiative and Safer Consumer Products websites for additional information.
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