Tracking Calif. Consumer Products Proposal

On Halloween, the California Department of Toxic Substance Control (DTSC) issued its long-awaited informal draft revision of the Safer Consumer Products regulation. After reading it and discussing it with the DTSC, representatives of the chemical industry at the 2011 Statewide Environmental Summit in San Diego on November 9, and fellow members of the Green Ribbon Science Panel (GRSP) at a meeting in Sacramento on November 14, I think it is more treat than trick.

The regulation is more streamlined, more straightforward, and closer to being implementable than previous versions. The general approach got approving nods from just about everyone, but that does not mean there are no more significant hurdles. For instance, it proposes that soon after the regulation comes into force, a “rather large” and “robust” list of Chemicals of Concern (CoC) will be published that's based on “authoritative” and “reliable” lists. There was general agreement that this is a good way to start for two reasons:

  1. It will enable the DTSC to move forward quickly.
  2. The chemicals are well known and well understood.

The DTSC also feels that having a large list (the department claims it will be around 3,000 substances) would have the effect of dampening nontargeted manufacturers' desire to simply replace the substances and move on. Why? Having a small list makes it easier to identify replacement substances, but it increases the danger that the replacement could be a future CoC and thus would be a “regrettable substitution.” One of the GRSP members said there could be well more than 20,000 substances that meet the CoC definition, so even this seemingly large number may not be adequate. Considering that there are 60 million molecules with a Chemical Abstract Service (CAS) number, I would expect that number to be low (though admittedly not all of them are in commerce).

The primary challenge is to select the list and then determine whether/how to adopt the entirety of substances in a given list or just select ones. The source lists identified in the draft are not all relevant to products, and some of the GRSP experts do not view all of the lists as credible.

The initial scope of Priority Products (PP) was removed, as well. Thus, the DTSC is able to consider products that are not only problematic, but also will help drive a robust implementation of the process. One significant area of contention has been whether the regulation should address the “worst first” or address “low-hanging fruit” first. The problem with the former approach, which the industry has been promoting, is that there is no way to define “worst” — we could argue about it for years and not get anything done. Furthermore, these could be very difficult problems that take a long time and extensive resources to resolve. The challenge this regulation faces in the short term is to put in place an alternatives assessment process that is robust but cost-effective for both the industry and the DTSC.

Members of the GRSP have often advised the DTSC to start with a “pilot” approach, in which it selects a very limited number of PPs and CoCs. If they are judiciously chosen, this would allow both the industry and the DTSC to identify process problems to resolve, as well as best-practices, before broadly disseminating the regulatory requirements. The department has indicated it expects to start with no more than two to five PPs.

What would a PP look like? Department director Debbie Raphael says the term would be defined narrowly and concisely. To me, that means we should expect PPs defined like “copper in brake pads of automobiles,” rather than the far more broadly defined “copper in automobiles,” or “chlorinated TRIS in polyurethane foams used in furniture” or “DEHP in infant pacifiers”.

The actual Alternatives Assessment (AA) process has been clarified and streamlined, too. A provision was added to enable companies that already have an internal AA process to use theirs instead of the one defined in the regulation if it produces the same result. Additionally, the onus of third-party verification was removed. However, after the initial set of PPs and the “pilot” process mentioned above, “Certified Assessors” will have to implement AAs as of 2015. CAs can be in-house or external consultants.

Why delay? The need to define the certification requirements and identify/approve certifying bodies is, to me, the biggest reason. In addition, this will give the department and, again, the industry time to understand the AA process.

Many other significant items changed, mostly for the better. You may obtain the draft revision from the DTSC SCP resource page. The public comment period is open through December 30.

One of the biggest challenges facing the DTSC is that AB 1879, the legislation behind the SCP regulation, has no provision for funding. So unlike the European Chemicals Agency with its implementation of REACH, the DTSC cannot charge manufacturers for any aspect of the regulatory requirements. As Raphael puts it, the DTSC has to “rob Peter to pay Paul” by using current resources to manage this program. This provides more incentive for an initially narrow list of PPs.

Once the DTSC can show that this program can work and is effective, I would expect legislation granting it the right to charge the industry for various aspects of the regulation (such as submitting an AA plan, submitting the actual AA, and any trade secret requests) to fund this activity.

There is a public workshop on December 5 in Sacramento. If you are not able to attend in person, you can do so via the Webcast.

15 comments on “Tracking Calif. Consumer Products Proposal

  1. Barbara Jorgensen
    December 2, 2011

    Michael–as always, there's a lot of great information here. I'll take your word that this is streamlined–it still looks pretty complex to me. More to the point: this would only impact Califronia, correct? So does this create yet another challenge for manufacturers that have to comply with a patchwork of regulations not just within the US, but globally as well? Is there any synergy with edicts such as REACH?

  2. bolaji ojo
    December 2, 2011

    Another hurdle to scale at the local level certainly but one with international implications for all companies as you pointed out. As California goes, so does the US, so it can be assumed that elements of this regulation will soon be migrating eastward and to the north. Soon, the regulation itself will leap across the Pacific and migrate over the Atlantic to Asia and Europe. Wouldn't it have been better for all the regulators to meet and agree on a set of rules that companies globally can centrally monitor? Would be but that's not the way things get done.

  3. mike_at_DCA
    December 2, 2011

    Thank you Barabara. Yes, it still is enormously complex…just not AS complex as it was! I guess that's cold comfort.

    Unfortunately this will indeed “create yet another challenge” for some manufacturers because it really has nothing in common with any other regulation on the books.  I often describe this as the next logical step for REACH. REACH restricts substances but doesn't make manufacturers evaluate and justify whatever substance(s) they use to replace the restricted substance from an environmental performance point of view.

    On the other hand, clearly this is the direction that manufacturers must head anyway. Whenever a part or material is specified or changed, we already have to justify it from functional, cost, availability, etc. perspectives. Adding environmental to the list is a logical step to both reduce future business risks as well as improve competition in the market on yet another performance front.

    Generally the manufacturers who have been involved over the past few years with this are very positive about its goals; they have some consternation about the methods and are very involved with DTSC's efforts to craft a workable regulation, but everyone really wants to do a better job of product stewardship, and that's what this is all about.

    Oh yes, and this is JUST California. But being the world's 7th largest economy (it may still be 8th, after Italy!) as well as being very influential to environmental regulators around the world, don't expect this concept to stay in California. Like EU's RoHS and WEEE, this too will be adopted, adapted, and mutated in other jurisdictions once it is in force and shown to work.

  4. mike_at_DCA
    December 2, 2011

    Yes, you got it Bolaji.

    Instead of waiting for the regulators to harmonize, I would prefer to see ALL article manufacturing industries come together to produce an association with a single, coherent voice. This is needed in order to help guide regulators around the world toward harmonized, and effective, environmental regulations that impact not only electronics, but autos, furniture, clothing, toys and all sorts of other things. While there are certainly areas they differ in, they all share elements of the same supply chains. And all those supply chains converge back at the raw materials and chemical suppliers.

  5. Barbara Jorgensen
    December 2, 2011

    Your point about California's market clout certainly puts things in perspective. I know that companies are taking a similar measure regarding fair labor practices very seriously. Way to go, left coast!

  6. _hm
    December 4, 2011

    Is this a voice of consumer or voice of industry? How much will average consumer will benifit from this as compare to earlier law?


    December 4, 2011

    Thanks for explaining all this.  I believe it is a step in the right direction and to be applauded.  I wonder how it will be policed and funded however.  I also look forward to other states following suit.

  8. mike_at_DCA
    December 5, 2011

    Not sure I understand your question, but this is “Voice of Government”!

    The hope/expectation is that the consumer will benefit greatly from this, along with the rest of the Green Chemistry Initiative as it gets implemented in that we will die less often from chemical-related illnesses, etc. This is a consumer saftey regulation, nothing more.

  9. bolaji ojo
    December 5, 2011

    Mike, Is the government getting involved because industry isn't acting or because it can't trust the private sector. You don't seem to object to the regulation but the manner in which it is being carried out and what's involved. How can the industry make it better and are you aware of any movement within the private sector to be more active in the process.

  10. mike_at_DCA
    December 5, 2011

    Bolaji, this was initiated in large part because the federal government's regulation of chemicals (TSCA) is ineffective, i.e. it does not prevent chemical-related environmental pollution and human health problems. The chemical industry in general needs laws that prevent it from putting harmful products on the market and they need government to tell them exactly what is, and is not, harmful.

    This was put in place as an alternative to determining chemical policy every time a new bill was introduced in the California legislature, which has resulted in a complex and inconsistent approach at the state level (they say they get around 30 bills each year, each on a particular substance).

    Don't get me wrong – I'm all for this; this will help product manufacturers get useful safety information from their chemical suppliers while helping to bring environmental performance closer to being a key property of products that needs to be designed in. It's a more elegant solution than simple bans and restrictions. Industry is involved via the Green Chemistry Alliance. If we have to have regulations to make industry do the right thing, then they need to be effective AND practical. This is heading in that direction and that's good.

    Finally, don't forget that I'm reporting on a regulation in development; the legislation requiring its implementation passed 3 years ago: that this will come into effect is a done deal. So what industry can do – and is doing – now is to work as closely as they can with DTSC to ensure the law is, in Director Raphael's words, “practical, effective, and legally defensible”.

  11. William K.
    December 6, 2011

    This is, or soon will be, a huge area of freedom removed from our citizens. The basis of the proposition is that “consumers”, individuals who purchase things, are to stupid to have any idea what is good for them. That is exactly what the function reduces to. Consider that it would logically prohibit things like oil based paint, effective rust remover, and most inexpensive disinfetants. After all, these items do contain some chemicals that can be harmful.

    Taken to it's logical outcome, the first products that should be banned in California are all alchoholic beverages, since it is well known that ethyl alchohol is a toxic chemical. Such a ban would serve to remind the rest of the country that, upon occasion, “the masses” ought to be allowed to make their own decisions. 

    When we decide to have some “Big Brother” agency composed of people far smarter than us, we will surrender a whole lot of freedom that has not been cheaply won. Please consider that.

  12. garyk
    December 7, 2011

    I think the BIG question is how do we control the products coming out of CHINA?

    If you don't believe it, check the labels, clothes, toys, tools, kitchen aids, after market car parts, calenders, hand bags, etc.

    Who ever imports should be responsible!!!!! Example: If Mattel Toys imports toys from CHINA they are responsiable for health and quality and should be fined if there is a problem with health issues.

  13. mike_at_DCA
    December 7, 2011

    Well William, the problem is not that consumers are “stupid”. How, for instance, do parents know what their infant's pacifier is made of? How do they know if it's safe in terms of human health (and the environment)? Who is making sure it's safe? It's certainly not the US EPA or CPSC or even the manufacturer in most cases. The fact is, nobody is making sure it's safe in terms of environmental or human health safety. There are no metrics and no way to know for sure. While we have tools like the UL or equivalent marks for classic safety (thermal, mechanical, electrical), there's no UL listing for environmental or human health safety (they and others are, by the way, working on something like that but it's got a long way to go).

    If consumers – and manufacturers – had access to the information necessary to make informed decisions about the chemicals they use then perhaps a law like this wouldn't be necessary. But we don't. The chemical industry never voluntarily provided it – or even researched it in many cases – unless forced to by the EPA. TSCA doesn't work and the chemical industry is loathe to let on just how toxic many mainstream chemicals are; (don't forget that they fought REACH tooth and nail, with help from the Bush Administration…and lost). So a regulatory solution is, unfortunately, necessary. California (like many states) has pollution problems that can be prevented by considering environmental performance during product design. This is a more enlightened approach to solving the problem than simple bans are. Why is that a bad idea?

  14. mike_at_DCA
    December 7, 2011

    Garyk, yes absolutely. All you have to do is look back at the lead in toys disasters of 2007. I'm sure the manufacturers specified “no lead” in the specs for the products they had built there, but did they qualify their supply chains to ensure their suppliers' abilities to meet and maintain those requirements? Did they audit the products and facilities? No! That government regulations were required to fix this (CPSIA) is ridiculous. These companies failed to implement the most basic supply chain management and quality assurance concepts.

    Whatever you specify, you need to ensure your supply chain is capable of implementing and/or providing. That's a basic tenet of supply chain design and management.

    That's somewhat of a different problem than the basic design specification problem the California SCP regulation is attempting to address, though. I hope it doesn't come to needing more regulation to control “series production”, as the RoHS recast calls it. It's up to manufacturers to make sure that more regulation isn't required by ensuring their supply chain is under control, and that their products are designed to meet – and hopefully exceed – environmental regulatory requirements.

  15. William K.
    December 7, 2011

    There is a good response, pointing out that some suppliers deliberately falsify data, as Chinese suppliers have done repeatedly. Possibly others have been a bit more careful, and not been caught.

    Clearly it is the obligation of all companies to tell the truth. But that is not where the California proposal is heading. It is a determined effort to escape responsibility, forcing suppliers to not only be safe, but to demand that they exclusively be responsible for safety. The individual using an item must also be responsible, and this is what I see this proposal working to eliminate. “But you said it was safe” will be the lead-off to all kinds of lawsuits about all kinds of products.

    In my present occupation I need to make many judgements daily about conditions of my personal safety. If I had to depend on others for making these decisions I could not possibly do what I need to do. I accept that on most occasions I alone am responsible for my personal safety. When I use a solvent that is not available in California, I use it safely, but in California I would not even have that option. THat is what I am talking about. 

    In a fairly short time, the state of California will decide that they alone are qualified to decide what is safe for folks to use. That is the very logical extension of this concept. If those deciding were of infinite wisdom, that might be OK, but that state is well known to have government decisions made based on emotions, not any facts at all. You know that as well as I know it. You may not like to hear that, but it is a fact.

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