Robert L. Falk, Michael Jacob Steel, and William F. Tarantino
Consumer Products, Environmental + Natural Resources, Environmental Litigation, Environmental Permitting + Regulation, Product Liability and Counseling, and Proposition 65 + Chemicals
On February 8, 2018, the California Department of Toxic Substances Control (DTSC) released a Draft Three-Year Priority Product Work Plan (2018-2020) (new Work Plan) under its Safer Consumer Products (SCP) Program. The SCP Program is an innovative regulatory scheme to evaluate and require safer substitutes for hazardous chemicals in consumer products. The new Work Plan identifies the product categories that DTSC will evaluate during the next three years in order to identify the next set of Priority Products it will regulate under the SCP regulations.
Following on the heels of the prior 2015-2017 Priority Product Work Plan (Prior Work Plan), the new Work Plan identifies seven product categories from which DTSC will propose future Priority Products for regulation. The new Work Plan also describes DTSC’s considerations in selecting the product categories and provides selected examples of Candidate Chemicals found in products within these categories.
Of the seven product categories, five are carried over from the Prior Work Plan with some names modified to make them consistent with industry or regulatory naming conventions, or to change the category scope. Two wholly new categories (Food Packaging and Lead-Acid Batteries) are also added. Two former categories not being evaluated under the new Work Plan are clothing products and fishing and angling equipment. The seven categories are:
Vehicle starting, lighting, and ignition
Cars, motorcycles, trucks, buses, recreational vehicles
Small, sealed forms
Consumer electronics, mining lanterns
Scooters, golf carts, forklifts
Uninterruptible power supply
Emergency lighting, cellphone towers, hospitals, computer centers
Utility-scale energy storage
Wind farms, solar installations
Public Hearing and Comment Period
DTSC will hold a public workshop on February 26, 2018 in Sacramento to accept public comments on the new Work Plan. Written comments will also be accepted until March 9, 2018. A copy of the new Work Plan and related useful information can be found on the Green Chemistry portal web page at https://www.mofo.com/green-chemistry.
Relationship to Proposition 65
For the most part, DTSC’s proposals to regulate products under the Safer Consumer Products program continue to trail “failure to warn” bounty hunter enforcement actions under California’s well-established Proposition 65 law (Health and Safety Code Sections 25249.6 et seq.). Indeed, prior Proposition 65 cases have addressed Candidate Priority Products and associated Candidate Chemicals in all of the above categories.
While we have successfully defended several of these cases (e.g., titanium dioxide in cosmetics and skin care products, formaldehyde in laminate flooring), many other cases have settled based on a commitment to remove or limit the chemical of concern (e.g., benzophenone in sunscreen, 1,4-dioxane in cleaning products and shampoos, chlorinated or brominated compounds in fire retardants applied to upholstered furniture) in the subject product to reduce the potential consumer exposure. In addition, relatively recent Proposition 65 listings of chemicals such as BPA have already resulted in widespread efforts to reformulate food and beverage packaging or to warn until such reformulation becomes feasible.
The question of the effectiveness of California’s Safer Consumer Products Program has been posed since its inception under former Governor Arnold Schwarzenegger. With a proposed work plan that trails Proposition 65 enforcement trends, DTSC is not offering the relief to California’s haphazard chemical policies that was promised when the Green Chemistry Initiative was launched. With Governor Jerry Brown’s term ending at the end of this year, it may well be up to a new California governor and legislature to decide the real future of the SCP Program.
Morrison & Foerster LLP has been a leader in representing the business community’s interests relative to both California’s Safer Consumer Products Program and Proposition 65 since their inception. We have represented more companies and won more trials on consumer product chemical exposure issues arising in California than any other law firm. For more information about these laws or our related services, please contact https://www.mofo.com/practices/regulatory/environmental-permitting-regulation/proposition-65-chemicals.html?tab=people.
Lois Miyashiro, an environmental analyst in the firm’s San Francisco office, assisted in the preparation of this client alert.
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