On October 31, 2011, California released informal draft regulations to implement its green chemistry law. These draft regulations update the proposed regulations that were criticized by industry and environmental groups, although it appears that regulators primarily responded to comments from environmental groups.
The Safer Consumer Products Alternative (or “Green Chemistry”) law requires the State to identify a list of chemicals that pose the greatest risk, to identify the products that contain those chemicals and to require manufacturers to reformulate their products to use “safer” chemical alternatives, if feasible. The new language is broader in scope and more stringent than the prior proposal and also requires the list of priority chemicals be prepared more quickly. For example, the new language will result in the State including initially more than 3,000 priority chemicals (compared to 800 chemicals in the prior proposal). Additionally, the draft would require an initial list of priority products be developed within six months of promulgation, compared with an alternative process that limited priority product categories during the first five years.
Even more troubling, the current proposal makes product designers and U.S. importers responsible for compliance with the regulations, not just manufacturers. Finally, the current proposal reduces the regulatory threshold from 0.1% to less than 0.01% for most chemicals (i.e., any chemicals that are listed because of carcinogenicity, developmental toxicity, reproductive toxicity, endocrine toxicity, genotoxicity, immunotoxicity, neurotoxicity, bioaccumulation, or environmental persistence).
California is accepting comment on these draft regulations until December 30 and expects to issue revised regulations for comment next year. As California is the largest economy in the U.S., once finalized, these regulations may become the de facto national standard for consumer products. Therefore, consumer products companies should closely follow these regulations and consider providing comments either alone or through a trade group.
AnnMarie Sanford, Esq. and William Walsh, Esq.
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