Uncertainty Remains Over DTSC’s Draft Priority Products Work Plan

Environmental Law  

September 26, 2014

The California Department of Toxic Substance Control (DTSC) held a workshop on September 25, 2014 regarding the Draft Priority Products Work Plan (“Draft Work Plan”) identified under its Safer Consumer Products (“SCP”) regulations.  The purpose of the workshop was to get stakeholder input on the proposed Draft Work Plan.  DTSC released the Draft Work Plan on September 12, 2014, which included six product categories and classifications.  The six product categories and classifications are (1) beauty, personal care and hygiene products; (2) building products and household, office furniture and furnishings; (3) cleaning products; (4) clothing; (5) fishing and angling equipment; (6) office machinery (consumable products).  DTSC explains its product category screening approaches in the Draft Work Plan, gives examples of products that would fall under each category, and identifies potential candidate chemicals that are in each of the product categories.  However, at the workshop, DTSC caveated that neither the examples of products nor candidate chemicals are the exclusive ones they will look at once the Draft Work Plan is adopted and implemented over the next three years.

Because DTSC’s SCP regulations are relatively new, and the Draft Work Plan establishes the categories of products DTSC will focus on over the next three years, many are watching the process closely.  We expect that how DTSC handles this Draft Work Plan adoption will set precedent for the future development of Work Plans, and the selection of product categories.  As a result, even industry groups and manufacturers whose products are not covered by this Draft Work Plan are closely monitoring 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 categories of products in a Work Plan that it will then draw from to identify future Priority Products that fall within one of the identified product categories.  DTSC said that after adoption of the Draft Work Plan, it will identify and evaluate 5 to 10 potential Priority Products per year, and determine 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.

We have identified a number of issues and concerns with the Draft Work Plan, and the six product categories identified in the Draft Work Plan.  Many of these concerns/issues were echoed during the workshop.  The following are some of those concerns/issues.

1.       In explaining its rationale for selecting the six product categories in the Draft Work Plan, DTSC referred generally to the list of factors contained in the SCP regulations.  It did not explain what science it relied upon for each factor, and did not indicate whether the science relied upon for evaluating a product category’s impact on human health and the environment was based upon science from California rather than other states or countries.  DTSC’s failure to specifically identify the science it relied upon for each product category has made it more difficult for the regulated community to respond to the science behind DTSC’s selection of product categories.

2.       Most of the six product categories identified by DTSC are very broad, making it unclear which products fall under each category or which products within a category DTSC will focus on over the next three years.  DTSC even admitted that it does not yet know what products in a particular category it will focus on for the identification of Priority Products.  Understandably, this is very frustrating for industry, who has no way to know whether their products will be covered by one of the six product categories.

3.       The candidate chemicals identified under each of the six product categories are not specific chemicals, but rather categories of candidate chemicals.  For example, under clothing, DTSC has identified perfluorinated compounds as a candidate chemical found in clothing.  But, DTSC has not identified the specific perfluorinated compound or compounds that will be the focus of that product category.  This makes it impossible for industry to zero in on those chemicals that DTSC believes are the most problematic, and begin to work to eliminate them, if possible, in the products.

4.       DTSC said at the workshop that it would consult with industry, but could not promise to do so before identifying a product as a potential Priority Product.  This is problematic.  Prior to formally identifying a product from a product category 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.

It is unclear whether DTSC will internalize the feedback it received at the workshop and make changes in to the Draft Work Plan.  DTSC will be conducting one additional workshops, and will be collecting written comments from stakeholders through the CalSAFER system, which are due by October 13, 2014.

DTSC will adopt the final Work Plan in January 2015, and begin identifying potential Priority Products in 2015.  We will continue to monitor DTSC’s implementation of the SCP regulations, and development of the Draft Work Plan.  For additional information or to submit comments for your business or industry group, please contact us.