DTSC’s Initial Priority Product List – Lessons Learned

Environmental Law  

May 13, 2014

The California Department of Toxic Substance Control (DTSC) held a workshop on May 7, 2014 regarding the proposed initial list of Priority Products identified under its Safer Consumer Products (“SCP”) regulations.  The purpose of the workshop was to get stakeholder input on the proposed initial Priority Products List.  DTSC released the initial proposed list of Priority Products on March 13, 2014, which included three products — paint and varnish strippers containing methylene chloride, spray polyurethane foam systems containing unreacted diisocyanates, and children’s foam padded sleep products containing TDCPP.

Because DTSC’s SCP regulations are relatively new, and the initial proposed list of Priority Products are the first products to be evaluated under the SCP regulations, many are watching the process closely.  We expect that how DTSC handles this first round of Priority Products will set precedent for future Priority Products listings.  As a result, even industry groups and manufacturers whose products are not covered by this initial list are interested to see DTSC’s process and whether DTSC responds to input from stakeholders.

DTSC adopted the SCP regulations in August 2013, and the regulations took effect on October 1, 2013, with the goal of reducing toxic chemicals in consumer products, creating new business opportunities in the emerging safer consumer products economy, and making it easier for consumers and businesses to identify what chemicals are present in the products they buy.  The SCP regulations establish a list of candidate chemicals that DTSC will target.  This target list combines other lists of chemicals created by authoritative bodies, and created under other regulatory schemes, like Proposition 65.  DTSC is tasked with identifying products that contain one or more candidate chemicals, and evaluating which of those products should be listed as a Priority Product.  Once a product is formally identified as a Priority Product, the manufacturers of that product are required to notify DTSC that their product is a Priority Product, and conduct an alternative analysis to determine how best to limit exposures to the candidate chemical in the product or eliminate the candidate chemical from the product.  The manufacturer must then submit its alternative analysis to DTSC for review and related   regulatory response.  DTSC’s regulatory response can range from requiring no further action to banning sale of the Priority Product in California.

During the workshop, there were break-out sessions on each of the three proposed Priority Products to enable stakeholder groups to provide specific and focused comments on each of the specific Priority Products.  One topic that was apparent from all of the break-out sessions was the impact in the market of DTSC’s listing of a product as a Priority Product.

We have identified a number of concerns/ issues with DTSC’s process in implementing the SCP regulations so far that were echoed during the workshop.  The following are some of those concerns/issues:

1.       In explaining its rationale for selecting the initial list of Priority Products, DTSC referred generally to the list of factors contained in the SCP regulations.  However, it did not indicate which factor or factors caused DTSC to choose any of the initial proposed list of Priority Products.  DTSC’s failure to specifically identify which of the factors it relied upon has made it more difficult for the regulated community to understand DTSC’s reasoning, creating greater uncertainty over which products could be identified in the future as Priority Products.

2.       DTSC has not identified any off-ramps in the SCP regulatory process other than a manufacturer receiving a response from DTSC that no further action is needed after submitting its alternatives analysis.  There should be other off-ramps in the process.  For example, after a Priority Product is identified, but before formal rulemaking, it should be possible for manufacturers to counter DTSC’s analysis of the impacts of that particular product.  And, if the manufacturer is able to provide enough information to convince DTSC that the product should not be a Priority Product, there should be an off-ramp for that manufacturer/product so that there is no formal rulemaking identifying the product as a Priority Product.

3.       Prior to formally identifying a product as a potential Priority Product, DTSC should have a dialogue with the industry responsible for that product.  This will ensure that DTSC fully understands the product, how it is used, and the risks associated with the product before listing it as a potential Priority Product.  Such a process will prevent the damage to industry that occurs when DTSC announces that it is considering listing a product as a Priority Product, but does not have all of the information about that product.

4.       DTSC should precisely and consistently define the products covered by a Priority Product listing.  Otherwise, DTSC can inadvertently sweep in products that should not be included in the listing, or cause confusion within the affected industry regarding what is and is not covered.

It is unclear whether DTSC will internalize the feedback it received at the workshop and make changes in its process.  DTSC will be conducting additional workshops over the next month, and will be collecting written comments from stakeholders, which are due by June 30, 2014.

The rulemaking process on this initial list of Priority Products is scheduled to begin in late 2014.  DTSC will then adopt final regulations related to the initial list by late 2015, which will trigger the need for manufacturers of the listed Priority Products to conduct an alternative analysis, and submit its analysis to DTSC.  DTSC is in the process of developing a three year workplan for the identification of additional Priority Products later this year, which will include a guidance document for use by manufacturers regarding the alternative analysis process.

We will continue to monitor DTSC’s implementation of the SCP regulations, and development of its three year workplan.  For additional information or to submit comments for your business or industry group, please contact us.