California’s Green Chemistry Initiative has taken another step towards regulating a widely available consumer product. On February 15, 2018, the California Department of Toxic Substances Control (DTSC) released a discussion draft document entitled Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs (Profile), which proposes to list carpets and rugs containing PFASs as a Priority Product. Under the Initiative, also known as the Safer Consumer Products (SCP) Program, DTSC must identify product-chemical combinations that meet the identification and prioritization criteria set forth in the SCP regulations before initiating a rulemaking. Those criteria include the following:
In the Profile, DTSC sets forth its rationale for its proposal to list carpets and rugs containing PFASs as a Priority Product.
The Candidate Chemical and Product
For purposes of this Profile designation, PFASs include:
A large number of PFASs are used to treat carpets and rugs by conferring stain-, soil-, oil-, or water-resistance.
The Profile covers carpets and rugs made from natural or synthetic fabric to be used as floor coverings in residential or commercial buildings—including carpeted door mats used indoors and outdoors—but does not include: carpets and rugs for outdoor use; carpets and rugs for use inside trains, planes, buses, automobiles, or any other indoor environment besides buildings; resilient floor coverings (e.g., vinyl tile and linoleum); artificial turf; table mats; wall hangings and coverings; or camping sleeping mats.
Use and Regulation of PFASs
According to the Profile, “[c]arpets and rugs contribute to widespread environmental contamination and exposures, as do other consumer products such as food packaging, cosmetics, and waterproof clothing. Once released to the environment [i.e., air, water, and soil] during product manufacture, use, or disposal [e.g., landfilling], PFASs become part of a virtually closed cycle leading to chronic, lifelong human and ecological exposures. . . Because PFAAs and other persistent PFASs lack a natural degradation route, their levels in the environment, humans, and biota may continue to rise for as long as PFASs are used in consumer products.”
Notably, perfluorooctanoic acid (PFOA) and related substances have been listed as Substances of Very High Concern (SVHC) under the European Union’s REACH regulation, and several related PFASs are listed as SVHCs or as REACH restricted substances due to their persistent, bioaccumulative, and toxic properties. Distributors of articles in the EU (including rugs) are obliged to advise downstream users when an SVHC is used above 0.1 percent by weight.
Both PFOA and perfluorooctane sulfonate (PFOS) were added to the Proposition 65 list of developmental toxicants on November 10, 2017. Products that contain PFOS or PFOA will be subject to Proposition 65’s warnings requirement as of November 10, 2018.
Alternatives to PFASs
Some non-chemical alternatives to PFASs in carpets and rugs include:
A chemical alternative is:
Other chemical alternatives identified by DTSC include Invista’s non-fluorinated Duratech® and Tandus Centiva’s Eco-Ensure; however, DTSC has not evaluated these for safety and does not have complete chemical content information on these alternatives.
Workshop and Comment Period
DTSC now seeks public comment and information that will further shape its regulatory proposal. Interested stakeholders and other potentially regulated parties should consider engaging in the process now. DTSC is holding a public workshop on March 7, 2018 in Sacramento and via a webcast. It is also accepting public comments on the Profile until March 23, 2018. The Profile and related useful information can be found on the Green Chemistry portal webpage at https://www.mofo.com/green-chemistry.
Morrison and Foerster has worked with regulators and clients on the Green Chemistry Initiative since its inception and can provide additional detailed information about the Priority Product listing and the consequences to business.
Lois Miyashiro, an environmental analyst in the firm’s San Francisco office, assisted in the preparation of this client alert.