Priority Products workshop: California's Safer Consumer Products program continues to develop.

Yesterday, California’s Department of Toxic Substances Control (DTSC) held the second of three public workshops on its initial Priority Products in Oakland. These workshops are being held to elicit feedback from stakeholders before the start of the formal rulemaking process, which is anticipated to begin in late June.

In his introductory presentation, DTSC Branch Chief of the Safer Consumer Products (SCP) program Karl Palmer explained that only three (instead of the possible five) Priority Products were initially chosen because the agency wanted to be deliberate, slow, accurate, and effective in rolling out the new SCP program. Palmer also noted that the agency was developing a new data system that may be available as soon as August, which would manage confidential business information (CBI) in submissions to the agency as well as rulemaking processes.

Agency staff explained various refinements that have been made since the first public workshop, focusing on revisions to the Priority Product profiles. Responding to industry comments, the profiles now contain a second-page “disclaimer” explaining that the profiles are non-regulatory documents showing a “snapshot in time” of the agency’s thinking, and are not meant to assert that certain products cannot be used safely, or to endorse alternatives. At the workshop, various commenters from the chemical industry continued to push back that the profile for Spray Polyurethane Foam (SPF) Systems contained inaccurate information and should require a more explicit disclaimer.

In addition to the profiles, product definitions have been revised on the program’s draft regulatory concepts [PDF]. Agency staff noted that, as shown in this document with strikeouts, the SPF definition was narrowed to focus only on applying unreacted diisocyanates to produce rigid foam. The regulatory concepts draft also updates the definition of paint strippers containing methylene chloride from the one contained in the Priority Product profile, now removing reference to surface cleaners, which are already barred from containing methylene chloride under the California Air Resources Board (CARB) General Consumer Products Regulation.

A general theme repeated throughout the workshop was that DTSC was eager to accept information from stakeholders, especially quantitative data on the products’ markets and supply chains, and the availability or viability of alternative products.

The third public workshop will take place on June 4 in Los Angeles. More information, including how to register to attend or file comments, is available on the Safer Consumer Products Workshops page. That page also links to various new documents, including presentations from the workshops. DTSC continues to accept comments on the Priority Products before rulemaking begins, through June 30.

Looking ahead, DTSC will release a three-year Work Plan and hold a public workshop on it in the late summer. The Work Plan, which should be finalized by October 1, 2014, will identify product categories the agency plans to consider next. Draft guidance on alternatives assessments, including input from the Green Ribbon Science Panel, is expected by the end of the year.


DTSC announces Priority Products workshops and releases Draft Regulatory Concepts.

California’s Department of Toxic Substances Control (DTSC) has announced a series of Priority Product workshops intended to engage members of the public before official rulemaking for the initial Priority Products begins. Along with the announcement, DTSC released a document on “Priority Products Draft Regulatory Concepts and Topics for Stakeholder Input,” [PDF] to elicit input from the public during the workshops. The forthcoming Priority Products rules will be a significant step in implementing DTSC’s Safer Consumer Products Program.

The Draft Regulatory Concepts document contains several questions for stakeholder input, on the following topics:

  • Priority Product description (e.g., Are the definitions and terms clear and unambiguous as to which related products are included and excluded?);
  • Chemicals of Concern and alternatives (e.g., Are there other Candidate Chemicals in this product that you suggest be considered?); and
  • Market information (e.g., What is the market presence of the Priority Product?).

The document also describes the Priority Products, similar products that are excluded, and the chemicals of concern. Notably, the agency now includes bedside sleepers and co-sleepers as new examples of children’s foam padded sleeping products, explaining that these products were not included in the “Priority Product Profile” but were “later found to meet DTSC’s intent for this Priority Product.”

Three workshops have been announced, to take place in May through early June, in Sacramento, Oakland, and Los Angeles. The agenda for the first meeting, in Sacramento on May 7, is available here [PDF]. DTSC will accept written comments from the public submitted by June 30, 2014, so that the agency can consider them before releasing the proposed rulemaking package.

DTSC announces draft Priority Products under Safer Consumer Products program.

This morning, California’s Department of Toxic Substances Control (DTSC) revealed its highly anticipated draft list [PDF] of Priority Products, a key step in rolling out agency’s new Safer Consumer Products (SCP) regulations.

As expected, the draft list is composed of three products. The products are:

  • Children’s foam padded sleep products containing TDCPP (chlorinated TRIS);
  • Spray Polyurethane Foam (SPF) systems containing unreacted diisocyanates; and
  • Paint and varnish strippers and surface cleaners containing methylene chloride.

The agency chose these products because they are widely used and contain at least one Candidate Chemical that has the potential to cause serious harm to human health or the environment. According to DTSC, all three of the products are known to cause serious health effects in humans, including cancer, severe asthma, and neurotoxicity. People who are at risk from these products include children and daycare workers in the case of foam sleeping products, and independent contractors, workers, and Do-It-Yourselfers in the case of SPF systems and paint strippers. Alternatives in the marketplace exist for children’s sleeping products and paint/varnish strippers and surface cleaners; however, DTSC officials said they were not aware of any spray-application alternatives for SPFs, which will present “a challenge for manufacturers.”

DTSC’s action today does not ban the products; rather, it starts an extended process that will include formal rulemaking procedures for the finalization of the Priority Products list, which may take up to a year. Next steps include DTSC’s quarterly public meeting on March 17; public workshops on the selection of the draft Priority Products, expected to be held in May and June; and a Work Plan to be released in October. After the final Priority Products list is finalized, manufacturers and sellers of Priority Products must notify DTSC that they are a “responsible entity,” and then submit a preliminary Alternatives Analysis (AA) report for state approval. A final AA report must be submitted a year later, after which DTSC will determine its regulatory response, which may range from requiring further research to imposing an outright ban on sales in California.

Moreover, DTSC intends that the SCP program will spur manufacturers and retailers to proactively reformulate products containing Candidate Chemicals. DTSC director Debbie Raphael emphasized that the measure of the success of the program would be the ability and willingness of product manufacturers to answer the question, “Is it necessary to use this chemical?” before the agency names a particular chemical-product combination.

For more information, see DTSC’s FAQ on the draft Priority Products [PDF] and press release [PDF].

New warning requirements proposed for California's Prop. 65.

This week, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced its proposal to amend Proposition 65 warnings. OEHHA’s proposal is aimed at improving the quality of Prop. 65 warnings, and is part of the suite of Prop. 65 reforms advocated by Governor Jerry Brown.

A pre-regulatory public workshop on the same topic was held in July; the new proposal provides more detail and incorporates changes and feedback from comments received in response to the agency’s initial pre-regulatory proposal. OEHHA has prepared a Draft Pre-Regulatory Initial Statement of Reasons for the Warning Regulation [PDF] and Draft Pre-regulatory Warning Regulation [PDF], as well as a side-by-side comparison [PDF] between the draft regulatory language and current regulations.

Generally, the proposal establishes certain standards for what warning language counts as “clear and reasonable.” The draft regulations would require the word “WARNING” to appear in all capital letters and bold print, and specifies use of the word “expose” in the following warning language. Notably, the new proposal requires the use of a standard pictogram for toxic hazards from the Globally Harmonized System (GHS), except for on food products, drugs, and medical devices. A new OEHHA website would provide the public with more detailed information on warnings, including exposure pathways and methods of reducing exposure. The proposal also specifies the following twelve common substances (already listed under Prop. 65) that must be identified by name in the warning:

  • Acrylamide
  • Arsenic
  • Benzene
  • Cadmium
  • Chlorinated Tris
  • 1,4-Dioxane
  • Formaldehyde
  • Lead
  • Mercury
  • Phthalates
  • Tobacco smoke
  • Toluene

In addition, the proposal recognizes court-approved warning language and provides for “tailored” warning language for certain scenarios, such as dental care, apartment buildings and hotels, parking facilities, and amusement parks. OEHHA also proposes a new “Opportunity to Cure” provision for small retailers to fix certain minor violations within 14 days and avoid private enforcement actions, with the goal of avoiding frivolous litigation.

OEHHA will hold a public workshop to discuss the proposal on April 14 and will accept comments through May 14, 2014. After the workshop and comment period, OEHHA plans to propose the formal regulation in early summer 2014, with the expectation that final regulations could be adopted in the summer of 2015.

California Prop. 65: TCE added as reproductive toxicant, new additions proposed.

California’s Office of Environmental Health Hazard Assessment (OEHHA) has finalized the addition of trichloroethylene (TCE) to its Proposition 65 list of reproductive toxicants. OEHHA proposed the listing in November 2013, based on data and conclusions from U.S. EPA’s IRIS Assessment and report finding that TCE causes male reproductive and developmental toxicity in laboratory animals. TCE, which is used as an industrial solvent, was already listed under Prop. 65 as a carcinogen.

On February 7, OEHHA filed several Notices of Intent to List various substances as cancer-causing under Prop. 65. OEHHA proposed listing beta-myrcene and “nitrite in combination with amines or amides” as carcinogenic under the “authoritative bodies listing mechanism.” Beta-myrcene is a plant derivative used as a flavoring agent or fragrance in various consumer products, and is also synthesized as a high-production chemical for the manufacture of alcohols, polymers and other chemicals. The National Toxicology Program concluded in 2010 that beta-myrcene causes kidney and liver cancers in laboratory animals. Nitrites in combination with amines or amides are commonly found in food, and its proposed listing is based on a 2010 report from the International Agency for Research on Cancer (IARC), which found “sufficient evidence” of the substance’s carcinogenicity. OEHHA also proposed listing pulegone, a plant-derived compound, as carcinogenic under the Labor Code mechanism, which is based on the Federal Hazard Communication Standard and IARC’s identification of a substance as a human or animal carcinogen. Megestrol acetate was also proposed for listing as a carcinogen in accordance with requirements by the federal Food and Drug Administration.

In addition, OEHHA announced its intent to list the triazine-class herbicides atrazine, propazine, simazine and their chlorometabolites DACT, DEA and DIA as reproductive toxicants. The listing is proposed under the “authoritative bodies” mechanism, based on various EPA studies finding that the substances “cause developmental and reproductive effects through a common mechanism of toxic action.”

OEHHA is accepting public comments on all of the above proposed listings through March 10, 2014.

DTSC spring quarterly meeting will address Safer Consumer Products.

Officials from California’s Department of Toxic Substances Control (DTSC) will discuss the Safer Consumer Products program and Priority Products at the agency’s upcoming Quarterly Public Meeting. DTSC recently posted the agenda [PDF] online, but more detailed presentation and supporting materials are not yet available. At the agency’s last quarterly public meeting [PDF], held in December, officials estimated that draft Priority Products would be identified before April 2014 and draft Alternatives Analysis guidance would be released in spring 2014.

In addition to Safer Consumer Products, other topics to be addressed at the meeting include DTSC’s proposed budget for 2014-15; an update on the ongoing permit program review; and an update on the agency’s work on cost recovery. The meeting will be held on March 17, 2014, at 9 a.m. in the Sierra Room of the Cal/EPA Building in Sacramento.

Members of California’s second Green Ribbon Science Panel announced.

Yesterday, California’s Department of Toxic Substances Control (DTSC) announced the appointment of 15 members to the newly reconstituted Green Ribbon Science Panel. The appointments include reappointed members from the first panel as well as new members. Panel members include experts on public and environmental health as well as chemicals policy, law, and engineering, and are drawn from academia, NGOs, industry, and government. As we previously discussed, the Panel advises DTSC on green chemistry and chemicals policy issues, including implementation of the Safer Consumer Products regulations.

A Green Ribbon Science Panel Webinar Meeting will be held January 29, 2014. More information from DTSC will be posted online in the near future.

DTSC releases strategic plan.

California’s Department of Toxic Substances Control (DTSC) plans to focus on improving departmental operations while addressing health and safety issues through a variety of new and continuing initiatives to reduce hazardous waste and toxic substances. In late December, DTSC released its Strategic Plan for 2014-2018: Fixing the Foundation – Building a Path Forward, [PDF] which lays out approaches and specific objectives for five broad goals: Cleanup, Hazardous Waste Management, Safer Consumer Products, Support Services, and Public Engagement.

DTSC’s approach to achieving its Hazardous Waste Management objectives includes holding businesses accountable for costs associated with regulation and cleanup, maximizing enforcement reach, and improving data quality and transparency. Notably, the plan calls for reforming the agency’s hazardous waste fee system by making fees “fairer” and in line with the goals of source reduction, recycling, polluter-pays principle, and in-state management. Following an external review of the agency’s permit program, DTSC plans to work on ensuring that permits are protective, timely, and enforceable, and also that enforcement is effective, efficient, and consistent. The agency hopes to improve public confidence in this area through a range of different efforts, including making the “enforcement program’s information and processes more accessible to the public” and launching an IT system that “improves the availability and accuracy of hazardous waste tracking data” for both the agency and the public. Other Hazardous Waste Management objectives include: working with Cal/EPA to train and evaluate local authorities responsible for enforcing hazardous waste laws at the local level; expanding DTSC’s capacity to respond to natural disasters and chemical emergencies; and assessing the classification of metal shredder waste.

The agency’s approach to its newly-launched Safer Consumer Products (SCP) program includes: changing how products are designed and manufactured; avoiding product redesigns that result in “regrettable substitutes”; holding manufacturers responsible for the life cycle impacts of their products; and increasing public access to data on chemicals in consumer products while protecting trade secret information. First among its objectives for the SCP program is the adoption of the initial list of Priority Products and development of guidance documents for Alternatives Analysis. DTSC also plans to develop a data system to support implementation of the SCP regulations and provide information tools for manufacturers and consumers on chemical hazard traits and exposures.

More information on DTSC’s “Fixing the Foundation” initiative is available in Director Debbie Raphael’s online message.

California accepting applications for second Green Ribbon Science Panel.

California’s Department of Toxic Substances Control (DTSC) is currently accepting applications to serve on the Green Ribbon Science Panel. Members of the Panel come from both the private and public sectors and are experts in a variety of fields, including chemistry, public health, risk analysis, and materials science. The Panel draws on its scientific and technical expertise in advising the DTSC as well as the California Environmental Policy Council on various green chemistry and chemicals policy issues. The first Panel was assembled in 2009 and advised DTSC on developing the Safer Consumer Products regulations which just went into effect last month. Moving forward, the new Green Ribbon Science Panel will address implementation of the Safer Consumer Products program.

The deadline for applications is this Friday, November 15, 2013.

California's Proposition 65 reformed to end "frivolous" lawsuits.

On October 5, 2013, California Governor Jerry Brown signed into law A.B. 227, amending Proposition 65. The bill aims to end “frivolous shakedown” lawsuits against businesses based on California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Prop. 65, a voter-initiative-based law which requires businesses to post warnings about chemicals known to the state as causing cancer or reproductive harm. We previously discussed this legislation and Gov. Brown’s Prop. 65 reform package in June.

A.B. 227 amends the law so business owners faced with a private enforcement action may take corrective action, pay a $500 fine and provide notice of the fix – a solution that the bill’s sponsor, Assemblyman Mike Gatto (D-Los Angeles), compared to motorist “fix-it” tickets. The changes went into effect immediately, on October 5.

Under Prop. 65, private citizen enforcers must send a “60-day notice” of the violation to the alleged violator, along with the California’s Office of the Attorney General, before filing suit. Businesses sued for failing to post proper Prop. 65 warnings face steep penalties of $2,500 a day, plus the private enforcer’s attorneys’ fees and costs. Some of these private enforcement actions have led to the development of what some critics, including Gov. Brown, call a “cottage industry” based on “nuisance” suits and shakedowns.

Under A.B. 227, businesses that receive a 60-day notice of violation could avoid costly litigation or settlements by correcting the violation within 14 days. The alleged violator would send to the private enforcer the $500 penalty and a completed proof of compliance form describing the corrective action taken and attaching a copy of the new warning along with a photograph of the warning’s placement on the premises. Of the $500 penalty, 75 percent will be paid to the state’s Safe Drinking Water and Toxic Enforcement Fund and the remaining 25 percent will be paid to the private enforcer. An alleged violator could use this “fix-it ticket” option only once, and the amendments do not prevent the Attorney General or other public prosecutor from taking enforcement action.

The new amendments only apply to certain Prop. 65 actions involving exposure to (1) vehicle exhaust at parking garages; (2) alcohol; (3) second-hand smoke; and (4) certain chemicals in food or beverages that are not intentionally added and occur naturally in preparation processes like grilling or frying, such as a acrylamide or benzene.

Gov. Brown’s broader array of proposed reforms – including capping attorneys’ fees and limiting settlement payments – were not adopted in legislation this year.