On January 29, 2013, the California Department of Toxic Substance Control (DTSC) released the ninth draft of the Safer Consumer Products proposed rule (also known as the Green Chemistry Rule). Once final, this rule will indirectly affect products sold all over the United States and not simply those sold in California, as manufacturers normally make only one version of a product for sale across the country. While the intent of this rule — encouraging the manufacture of safer consumer products — is widely shared by industry as well as the public, there remain fundamental questions about the scope, fairness, and workability of this latest proposal.
Within 30 days after the rule becomes final, DTSC will publish a list of 1,200 Candidate Chemicals (CC) and then select chemicals of concern (CoC) from this list. Other chemicals may be added in the future. Within 180 days after the rule becomes final, DTSC will list an initial five products that contain a CoC, known as “Priority Products.” After a Priority Product has been listed, if a company intends to continue selling such product in California, it must submit to DTSC a variety of assessments. These assessments (which are submitted in stages) require detailed information on product design and analyses of complete lifecycle effects of producing, using, and disposing of the product. It is expected that these assessments will be costly.
The rule empowers DTSC to limit uses, require product labeling or, most importantly, prohibit the sale of a Priority Product in California, if DTSC determines that “a safer alternative exists” and if: (a) the alternative is the functional equivalent of the priority product; (b) the alternative is “expected” to be able to be developed with existing technology; and (c) the cost of producing the safer alternative does not “significantly reduce the manufacturer’s operating margin.” In fact, DTSC may ban an existing product based just on a comparatively lesser impact, even if the last three criteria are not met, unless the company can demonstrate that the “overall” public health/environmental benefits and/or “social utility significantly outweigh its adverse impacts” and administrative and/or engineering restrictions on the product will “adequately protect public health and the environment.” Thus, comparative safety rather than quantitative risk seems to be the controlling factor.
Many industry representatives have expressed concern that the proposed rule could result in DTSC’s intruding into the product design process even when quantitative risks are not significant, fails to articulate clear decision-making criteria, and does not provide sufficient time for companies (or the industry coalitions that are likely to be formed) to comply with the enormous task of interpreting toxicological data, exploring alternative product designs, and developing adequate assessments. Notwithstanding such concerns, however, some industrial sectors, as well as environmental groups, support the draft rule.
DTSC expects to issue a final rule sometime in the summer, but industry has heard this before and many companies still regard the rule as far from ready.
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