California Green Chemistry Regulations:
California EPA and DTSC have announced a public meeting on the draft regulations. The meeting will occur on Thursday, February 28, 2013 at 9:00 a.m.
See announcement embedded below.
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California Green Chemistry Regulations:
The saga of California’s nascent Green Chemistry program continues. Last week, the Department of Toxic Substances Control (DTSC) released the revised text (PDF) of its proposed Safer Consumer Product Regulations. The comment period for the revisions started on January 29 and closes on February 28, 2013.
Notably, the revised rules significantly pare down the list of potential Chemicals of Concern (COCs), which are now referred to as “Candidate Chemicals,” from over 3,000 to approximately 1,200. The Candidate Chemicals are drawn from lists of substances which exhibit one or more hazard trait. The revisions also clarify that the list of Priority Products to be regulated will be developed and updated through the Administrative Procedure Act rulemaking process.
In addition, DTSC modified the applicability of upfront exemptions for certain products, providing an exemption for products already regulated by other laws that provide comparable health and environmental protections. However, products which are manufactured, stored, or transported through California solely for use outside of the state, or used in California solely for the manufacture of non-consumer products will no longer be exempted, although these factors will be considered in the product prioritization process.
Requirements for the certification and accreditation of assessors involved in developing Alternatives Analyses (AA) have been relaxed in favor of a public review and comment process for AA reports, a choice that seems likely to increase the administrative burden and place confidential business information at greater risk. The scope of evaluating economic impacts for AA reports has also been limited to “a monetized comparison of public health and environmental costs, and costs to governmental agencies and nonprofit organizations that manage waste, oversee environmental cleanup and restoration efforts, and/or are charged with protecting natural resources, water quality, and wildlife.”
Finally, DTSC’s ability to make regulatory responses has been further refined and clarified. For example, the revised proposal requires DTSC to provide notice (with accompanying public comment period) of its proposed regulatory response determination no later than 90 days after it issues a notice of compliance or disapproval for a submitted AA report. The revised proposal also limits the agency’s ability to impose certain regulatory responses on manufacturers only, and not on retailers or importers.
More details on the revised proposed regulations, including how to submit comments and a comprehensive summary of changes from the agency’s last proposal, are available on the DTSC’s website.
California Green Chemistry:
On December 20, DTSC delivered everyone an early Christmas present. The agency announced that it was re-opening the docket to accept public comments on yet another revised version of the Safer Consumer Product Alternative (SCPA) Regulations. The agency’s announcement is embedded below. Merry Christmas – better scratch those holiday plans and get back to work! Surely some are asking themselves “When will this stop and the litigation begin?”
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30 DAY PUBLIC NOTICE AND COMMENT PERIOD
NOTICE OF PUBLIC AVAILABILITY OF POST-HEARING CHANGES
SAFER CONSUMER PRODUCT ALTERNATIVES
Department Reference Number: R-2011-02
Office of Administrative Law Notice File Number: Z-2012-0717-04
Pursuant to Government Code section 11347.1, notice is hereby given that the Department of Toxic Substances Control (DTSC) has revised the Initial Statement of Reasons (ISOR) for the Safer Consumer Product Regulations, which establish the criteria for identification and prioritization of chemicals of concern in consumer products, evaluation of their alternatives, and imposition of regulatory responses by adopting chapter 55 to division 4.5 of Title 22, California Code of Regulations, and to amend the Table of Contents. DTSC is revising the ISOR to correct: typographical, spelling, cross-referencing, punctuation and other formatting errors. In addition, DTSC has revised the ISOR to address some substantive drafting issues raised regarding the ISOR. These include, but are not limited to, making more explicit the necessity statement for each provision.
DTSC mailed the 45-day Public Notice and made it, together with the regulations text and related materials, available for public review and comment on July 27, 2012. A public hearing was held on September 10, 2012, during which DTSC accepted written and oral testimony. In addition, written comments were accepted during the 45-day public comment period, which was extended by 30 days and ended October 11, 2012. DTSC has now made post-hearing changes to the ISOR. DTSC is NOT proposing changes to the regulations text as part of this notice and related public comment period.
A public comment period for the revised ISOR will commence on December 21, 2012, and close at 5 p.m. on January 22, 2013. Interested persons may submit comments regarding the revised ISOR by e-mail to gcregs@dtsc.ca.gov, by fax to (916) 323-5542, or by mail to:
Ms. Krysia Von Burg
Regulations Coordinator
Department of Toxic Substances Control
P.O. Box 806
Sacramento, CA 95812-0806
Copies of the revised ISOR are posted to DTSC’s Internet site at: http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/index.cfm and http://www.dtsc.ca.gov/SCPRegulations.cfm and are available for public inspection between 8:00 a.m. and 5:00 p.m. at the Regulations Section located at 1001 I Street, 23rd Floor, Sacramento, California. Requests and inquiries concerning this matter may be directed to Ms. Krysia Von Burg at the address indicated above or by telephone at (916) 324-2810. Additions to the existing text are double-underlined and text deleted from the existing document is shown as strikeout.
All comments must be received by DTSC by 5:00 P.M. on January 22, 2013, regardless of the form of transmission.
Technical inquiries regarding the Revised Initial Statement of Reasons should be directed to Ms. Odette Madriago, Chief Deputy Director, at (916) 323-4927. However, it should be noted that oral inquiries are not part of the rulemaking record.
30 DAY PUBLIC NOTICE AND COMMENT PERIOD
NOTICE OF PUBLIC AVAILABILITY OF POST-HEARING CHANGES
SAFER CONSUMER PRODUCT ALTERNATIVES
Department Reference Number: R-2011-02
Office of Administrative Law Notice File Number: Z-2012-0717-04
Pursuant to Government Code section 11347.1, notice is hereby given that the Department of Toxic Substances Control (DTSC) has revised the Initial Statement of Reasons (ISOR) for the Safer Consumer Product Regulations, which establish the criteria for identification and prioritization of chemicals of concern in consumer products, evaluation of their alternatives, and imposition of regulatory responses by adopting chapter 55 to division 4.5 of Title 22, California Code of Regulations, and to amend the Table of Contents. DTSC is revising the ISOR to correct: typographical, spelling, cross-referencing, punctuation and other formatting errors. In addition, DTSC has revised the ISOR to address some substantive drafting issues raised regarding the ISOR. These include, but are not limited to, making more explicit the necessity statement for each provision.
DTSC mailed the 45-day Public Notice and made it, together with the regulations text and related materials, available for public review and comment on July 27, 2012. A public hearing was held on September 10, 2012, during which DTSC accepted written and oral testimony. In addition, written comments were accepted during the 45-day public comment period, which was extended by 30 days and ended October 11, 2012. DTSC has now made post-hearing changes to the ISOR. DTSC is NOT proposing changes to the regulations text as part of this notice and related public comment period.
A public comment period for the revised ISOR will commence on December 21, 2012, and close at 5 p.m. on January 22, 2013. Interested persons may submit comments regarding the revised ISOR by e-mail to gcregs@dtsc.ca.gov, by fax to (916) 323-5542, or by mail to:
Ms. Krysia Von Burg
Regulations Coordinator
Department of Toxic Substances Control
P.O. Box 806
Sacramento, CA 95812-0806
Copies of the revised ISOR are posted to DTSC’s Internet site at: http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/index.cfm and http://www.dtsc.ca.gov/SCPRegulations.cfm and are available for public inspection between 8:00 a.m. and 5:00 p.m. at the Regulations Section located at 1001 I Street, 23rd Floor, Sacramento, California. Requests and inquiries concerning this matter may be directed to Ms. Krysia Von Burg at the address indicated above or by telephone at (916) 324-2810. Additions to the existing text are double-underlined and text deleted from the existing document is shown as strikeout.
All comments must be received by DTSC by 5:00 P.M. on January 22, 2013, regardless of the form of transmission.
Technical inquiries regarding the Revised Initial Statement of Reasons should be directed to Ms. Odette Madriago, Chief Deputy Director, at (916) 323-4927. However, it should be noted that oral inquiries are not part of the rulemaking record.
Green Marketing:
On October 2, 2012, the Federal Trade Commission (FTC) published long-awaited revised guidelines, known as the Green Guides, to aid marketers in properly making environmental benefit claims. The FTC released its final revisions after a multiyear investigatory process, which included marketing surveys as well as reviewing comments from companies, trade organizations, government entities and individuals. The the Green Guides lack the force of law, they provide guidance on how to avoid false or misleading environmental marketing claims in violation of Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices.
Below is a short summary of some of the major changes contained within the final revisions.
Highlights of the Newly Revised Green Guides
General Environmental Benefit Claims: The Green Guides caution against making general environmental benefit claims, such as using the words “green” or “eco-friendly,” without stating the basis for and qualifying these terms. The qualifying information must be clear, prominent and available at the point of sale—so consumers are able to see it before making their purchasing decisions.
Carbon Offsets: Marketers should use competent and reliable scientific evidence and comprehensive accounting methods to support their claims. However, an offset claim is inappropriate if the activity that makes the basis of the claim is required by law. If the offset purchase will pay for an emission reduction that will not occur for at least two years, then marketers are encouraged to disclose this information.
Certifications and Seals of Approval: The Green Guides also make recommendations for certifications and seals of approval used for endorsements. Marketers are encouraged to use environmental certifications or seals that convey the basis for the certification, but if these are not available, then they should clearly identify the product’s specific environmental benefits. Marketers are also encouraged to disclose their material connections with certifying organizations and must verify all express and implied claims when using third-party certification.
Compostable or Degradable: “Compostable” claims must be based on competent and reliable scientific evidence, showing that product or packaging materials will become usable compost. Marketers should qualify if the product is not able to be composted in a safe or timely fashion. “Degradable” claims do not have to be qualified if the product or package can completely break down within a reasonably short amount of time, typically one year.
“Free-Off”: “Free-of” claims can be made if the product contains trace amounts, background levels or less of the substance; the substance was not intentionally added to the product; and the amount contained with the product will not cause the type of harm linked to the substance. The final revision differs from the standard articulated in the draft revision, and it will certainly create challenges for marketers.
Non-Toxic: For “non-toxic” claims, marketers should employ competent and reliable scientific evidence showing that the product is safe for people and the environment, unless otherwise qualified. A product might be considered “non-toxic” under certain agency regulations designed to protect human health, but those regulations might not ensure protection for the environment.
Ozone-Safe: Marketers are cautioned against misrepresenting that a product is safe for the atmosphere or ozone layer because the FTC finds that these can be unqualified general environmental benefit claims.
Recyclable and Recycled Content: The Green Guides also provide guidance regarding “recyclable” and “recycled content” claims. Recyclable claims should be qualified if recycling facilities are unavailable to 60 percent of consumers or communities to whom manufacturers sell a product. Recycled content refers to material recovered or diverted from waste during manufacturing or post-consumer use. Marketers are advised to qualify claims for products or packaging constructed partly from recycled material and specify the amount of partly recycled material contained therein. In addition, qualified claims should be made for products containing used, reconditioned or remanufactured parts.
Refillable: Marketers should not make unqualified “refillable” claims unless they identify a method to refill the product.
Renewable Materials and Energy : With claims like “made with renewable materials or energy,” the guides provide that marketers should qualify claims with specific information about the renewable materials used, such as what the renewable material is, how it is sourced and what qualifies it as renewable. Also, the Green Guides specify that marketers should qualify claims of renewable energy by specifying the source (e.g., wind or solar). If the power used to manufacture the product or any component of the product comes from fossil fuels, a renewable energy claim is inappropriate unless renewable energy certificates are purchased to link with energy use.
Source Reduction: Finally, “source reduction” claims should be qualified with the amount of reduction and the basis for comparison from which the claim is made (e.g., “30 percent less runof f than our earlier model”).
“Sustainable” and “Organic” Are Not Addressed: The final revisions offer no guidance on claims regarding “sustainability” and whether a product is “organic.” The FTC claims that it lacks a sufficient basis or context to provide guidance on these claims because these terms have numerous meanings among consumers. However, the Green Guides caution marketers from making these types of claims without impunity.
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The complete final revisions to the FTC’s Green Marketing Guides are available here. Additional information is also available on the FTC’s dedicated website.
Design for the Environment (DfE):
The U.S. Environmental Protection Agency today posted a List of Safer Chemical Ingredients that contains chemicals that meet stringent criteria applied by the Design for the Environment (DfE) Safer Product Labeling Program. This program recognizes products that are high-performance and cost-effective while using the safest chemical ingredients. At present, more than 2,800 common household and other products carry the DfE Safer Product Label. This list of safer chemical ingredients will help product manufacturers identify chemicals that the DfE program has evaluated and identified as safer alternatives. This list only includes chemicals in products that were voluntarily submitted for evaluation through the DfE Safer Product Labeling Program. There may be other chemicals not included in this list that are also safer. The list and additional information can be found at http://www.epa.gov/dfe/saferingredients.htm You can contact Bridget Williams in EPA’s DfE Program at 202-564-8558 or by email at williams.bridget@epa.gov for further information.
Design for the Environment (DfE) / Green Chemistry:
EPA’s Design for the Environment (DfE) team announced today that, in September, it will post on the agency’s website a list of chemicals that are acceptable for use in DfE-labeled products. Questions or comments about the proposal should be submitted to EPA by August 24, 2012. The contact at DfE is Bridget Williams (williams.bridget@epa.gov).
As readers know, over the years many DfE stakeholders have requested that EPA issue a list of safer chemicals. According to the agency’s press release, EPA’s intent is for the list to serve as a resource for product formulators and consumers, to increase understanding of the DfE Safer Product Labeling Program and the types of chemicals in DfE-labeled products. The list is also intended to enhance the dialogue on safer chemicals and products.
EPA is compiling its list from the ingredients in DfE-labeled products, as well as from chemicals eligible for use in labeled products – i.e., chemicals that meet the DfE criteria. The chemicals will be identified by their specific chemical name and Chemical Abstract Service (CAS) number and grouped by functional class—surfactants, solvents, etc. (chemicals with more than one common functionality may be listed in multiple classes).
A color code will appear next to each chemical to indicate its safer chemical status. A green circle will appear next to chemicals that have met the DfE component-class criteria; a green/yellow square next to chemicals that have met the DfE criteria as adapted for their necessary functional characteristics, but are missing some experimental data on potential hazards; and a yellow triangle next to chemicals that have met the DfE criteria as adapted for their necessary functional characteristics, but have unresolved hazard profile issues.
No other information about the chemical—not its source, manufacturer, or use; association with a trade name product, percentages in formulation, etc.—will appear in the listing. EPA intends to include on this list the ingredients in third-party formulations sold by manufacturers to DfE participants, and will likewise not associate those ingredients with specific products. Also, no chemicals on the confidential portion of the Toxic Substances Control Act Inventory will be included in the listing.
According to the agency’s press release, the DfE list will complement the Green-Blue Institute’s CleanGredients database (www.cleangredients.org), which will continue to serve as a marketplace for chemicals that are acceptable for use in DfE-labeled products and provide trade name chemicals, physical-chemical and functional properties, hazard information, vendor contacts, and other information.
Sustainability:
The European Chemical Industry Council (Cefic) published The Chemical Industry in Europe: Towards Sustainability on May 8. In the report, Cefic stresses the importance of applying sustainable chemistry to the entire product life cycle, beginning with consideration of raw material sourcing impacts, and including manufacturing, packaging, transport and distribution, sales and use, and post-use recovery or disposal. Towards Sustainability asserts that chemistry innovation is a catalyst for sustainable innovation in up- and downstream industries including consumer product sectors. In addition, the authors argue that “Industry’s ongoing focus on using renewable raw materials is helping identify new ways of protecting the environment.”
Towards Sustainability details chemical industry initiatives to reduce waste, drive down emissions, conserve resources, and improve energy efficiency. Major reductions in emissions purportedly have been achieved through optimizing production processes and implementing improved emission control technologies. Industry initiatives promote energy efficiency through the value chain. Many companies have applied new technologies and processes to use fewer raw materials and to reuse or recycle products in a closed loop system. In addition, reducing the amount of material in products without performance loss, down-gauging, has helped industry optimize resources. Also, partnerships throughout industry have turned waste into resources. According to the report, successes include:
The industry has also published technical information on abatement and recovery options for solvent emissions.
Featured in the report is a case study on the relationship between new chemical industry products and development of a sustainable construction sector. For example, Cefic explains, plastic insulating materials save many times the amount of energy used in production. The materials are stable and durable, and unaffected by moisture, rotting, or mold. And plastic materials are easily and completely recyclable or recoverable.
Towards Sustainability stresses the importance of sustainability to corporate viability. The authors quote securities analyst statements, such as
“Investors are beginning to acknowledge the impact of sustainability topics on a company’s financial valuation. By adopting effective product life cycle assessment strategies chemical companies can realign their portfolios towards sustainable innovation and at the same time provide financial investors with increased transparency about their commitment to sustainability.” Andrea Ricci , Equity Analyst -Sustainable Asset Management
The report also highlights Cefic members’ efforts to enhance chemicals management throughout the supply chain. Activities include:
Towards Sustainability also reports that industry is working with academia, regulators and NGOs to identify alternatives to the use of animal testing. Cefic is a founding member of the European Platform for Alternatives to Animal Testing which focuses on meeting safety requirements while also reducing the use of and replacing animal testing.
Towards Sustainability can be downloaded from Cefic’s website.
Chemicals in Consumer Products:
Researchers at the Silent Spring Institute argue that the findings of their consumer product evaluation illustrate the need for full disclosure of ingredient information. The Institute tested consumer products — ranging from toothpaste to laundry detergent — for compounds identified as either endocrine disruptors or asthma-related. Most products evaluated by the Institute included one or more “chemicals of concern.” In their report, the researchers emphasize that current chemical testing and product labeling requirements do not prevent the use of hormone disruptors or asthma-associated chemicals in products or provide enough information for consumers to avoid them. Silent Springs published its findings in the March 8, 2012 issue of the National Institute of Environmental Health Sciences’ Environmental Health Perspectives. The report has proven highly controversial and been severely criticized by industry for a flawed methodology and equating the mere presence of a chemical in a product with a lack of product safety.
The Institute, and other environmental and public health advocates, clearly plan to use the report to support their arguments for robust reforming of TSCA, the primary federal statute for regulating chemicals in the United States. Such advocates argue that many consumer products contain chemicals known to adversely affect human health. They note that for numerous common commercial chemicals, information about their presence in consumer products is limited. In particular, little information is available about hazardous chemical exposures from personal care and cleaning products.
The Institute found 55 chemicals of concern in conventional and “green” consumer products. The evaluation assessed consumer products for the presence of 66 known endocrine disruptors and asthma causing chemicals. Tested consumer products ranged from toothpaste to laundry detergent. The researchers found bis-2-ethylhexyl phthalate, diethanolamine, and glycol ethers in high concentrations. They found phthalates, monoethanolamine, alkylphenols, parabens, and cyclosiloxanes in many of the products. Sunscreens and scented products such as air fresheners and dryer sheets contained both the largest number of target chemicals and some of the highest chemical concentrations. However, the Institute did not report whether these chemicals were present above limits setting safe levels of exposure. For example, the National Institute for Occupational Safety and Health recommends diethanolamine exposure be limited to 3 parts per million.
The researchers allege that regulations require only limited product labeling, thereby limiting the information available to consumers. Personal products such as sunscreens, deodorants, and anti-bacterial hand soaps are largely regulated as over-the-counter drugs by the FDA. FDA regulations mandate only that “active” ingredients be identified on product labels. The Institute asserts that EPA has primary regulatory oversight of cleaning products, and only when these products are pesticide products (e.g., products that will kill bacteria and viruses) is active ingredient labeling required. Many consumer products call themselves “natural,” “non-toxic,” and “green;” however, the Institute contends that these terms are unregulated and the chemical contents of such products do not necessarily differ from comparable products.
The Institute also argues that gaps in ingredient information are also problematic for regulators. It argues that EPA, for example, relies on ingredient concentrations in products for exposure modeling.
And lastly, the researchers conclude that further study of the risks posed by the types of chemical mixtures that are found in personal care products, cleaning products, etc. are needed to understand their effects on human health.
US News, Forbes, Consumer Reports, and many other news outlets have published stories on this report.
Green Chemistry Regulations:
The public comment for the latest informal draft version of California’s “Safer Consumer Product Regulations” closed on December 30, 2011. On January 20, 2012, the implementing agency, the California Department of Toxic Substances Control (DTSC), posted the comments on its website. DTSC received ninety submissions from a range of stakeholder interests. More information about the regulations is available here.
Sustainable Products/Green Chemistry:
On January 12, 2012, the US Environmental Protection Agency (EPA) and the California Department of Toxic Substances Control (DTSC) announced their Green Chemistry Partnership. The agencies’ agreement is memorialized in a Memorandum of Understanding (MOU) that outlines principles by which the agencies will cooperate to reduce toxic chemicals in consumer products, create new business opportunities in the emerging safer consumer products economy, and reduce the burden on consumers and businesses struggling to identify what’s in the products they buy for their families and customers.
The agrement supposedly will allow DTSC and EPA to minimize duplication of effort and promote consistency in their assessment methodologies, potentially providing increased environmental protection. The agreement sets up a framework for the agencies to collaborate on Green Chemistry issues so that California’s innovative “Green Chemistry” program can grow.
Jim Jones, EPA’s acting assistant administrator for the Office of Chemical Safety and Pollution Prevention said: “This partnership will build and harmonize common tools and practices used to conduct alternative assessments to promote safer products …. These alternative assessments inform and speed the adoption of safer chemicals for use in products, homes, schools, and workplaces, which produce significant environmental and economic benefits.”
In its press release, EPA said: “The agreement represents a major advance for Californians looking to buy safer children’s toys, personal care products, household cleaners and other products. By shifting the question of an ingredient’s toxicity to the product development stage, concerns raised by … consumers can be addressed early on. The approach results in safer ingredients, and provides an opportunity for California industry to once again demonstrate its innovative spirit by making products that meet consumer demand throughout the world.”
EPA and DTSC signed the agreement in a ceremony at California’s Kaiser Permanente Sidney R. Garfield Health Care Innovation Center in San Leandro. Kaiser Permanente is nationally recognized as an industry leader in safer products, using its purchasing power and a sustainability scorecard to press suppliers for safer chemicals in medical products.
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