William F. Tarantino
Consumer Products + Retail, Product Life Cycle, Class Actions + Mass Torts, and Environmental Litigation + Regulatory
California has taken three more important steps to implement its Green Chemistry Initiative. Also known as the Safer Consumer Products (SCP) Program, the state seeks to supplement federal regulations to regulate and encourage replacement of toxic chemicals in consumer products.
I. New Priority Product - Spray Polyurethane Foam (SPF) Systems
California’s Department of Toxic Substances Control (DTSC), the lead agency for the regulations, adopted new regulations for its second priority product, spray polyurethane foam (SPF) systems containing unreacted methylene diphenyl diisocyanates. This product-chemical combination includes: (1) high-pressure SPF systems and (2) low-pressure SPF systems.
These new requirements are effective on July 1, 2018. Manufacturers who sell these products in California must notify DTSC by September 1, 2018, thereby enrolling in the complex process of product analysis and reporting under the Green Chemistry regulations. See the DTSC website for more details.
II. Draft Product-Chemical Profile on Nonylphenol Ethoxylates (NPEs) in Laundry Detergents
On May 11, DTSC released its Draft Product-Chemical Profile on NPEs in Laundry Detergents (Profile). This is the first step in notifying the public of DTSC’s intention to consider a product-chemical combination for regulation under the SCP program.
NPEs are surfactants that have been used for decades and have been found to be toxic to aquatic life. According to the Profile, “[s]urfactants lower the surface tension of water against a surface, such as soiled laundry, to facilitate wetting the surface and spreading of the cleaning solution.”
Notably, the Profile states that “due to voluntary phase-outs in the household and industrial laundry markets, the prevailing use of laundry detergents containing NPEs appears to be by on-premises laundries (OPLs) such as hotels, hospitals, and nursing facilities.” In addition, the Profile indicates that since laundry detergents containing NPEs are still being marketed and used by OPLs, “the amount of laundry washed by OPLs in California can be significant, with an estimated 2 billion pounds of laundry generated by the majority of OPLs.”
DTSC will hold a public workshop on the Profile in Sacramento on June 11, 2018, and will accept comments on the Profile through June 25, 2018. A copy of the Profile can be found at Morrison & Foerster’s Green Chemistry web page.
Other governmental bodies that have also looked at NPEs include USEPA and the European Commission.
Specifically, on May 9, 2012, USEPA’s Design for the Environment (DfE) Program released a final Alternatives Assessment for NPEs and identified eight safer alternatives to NPEs. And under the federal Toxic Substances Control Act, USEPA, on October 1, 2014, proposed a Significant New Use Rule (SNUR) requiring USEPA review before a manufacturer starts or resumes use of 15 nonylphenols (NPs) and NPEs. Although this proposed rule seems to have stalled, USEPA’s just-released Spring 2018 Semiannual Agenda of Regulatory and Deregulatory Actions indicates that a final SNUR rule is due in December 2018. Whether this will actually happen is yet to be seen.
In addition, in June 2017, the European Commission announced the addition of NPEs to Annex XIV, a list of chemicals subject to authorization under the European Union’s (EU) Registration, Evaluation, Authorisation and Restriction of Chemical Substances (REACH) legislation. This regulation, effective on July 4, 2017, indicates that use of NPEs in the EU must stop by January 4, 2021. Once the 2021 date has passed, only uses that have been specifically ‘authorised’ by the European Chemicals Agency will be allowed. The latest application date for authorization for NPEs is July 4, 2019.
III. Final Three-Year Priority Product Work Plan (2018-2020)
On May 1, 2018, DTSC issued its final Three-Year Priority Product Work Plan for 2018-2020 (Final Work Plan). The Final Work Plan follows public comment on a draft work plan (Draft Work Plan) described in our February 13, 2018 client alert on our Green Chemistry web portal here.
The Final Work Plan identifies seven product categories, five of which are carried over from the Prior 2015-2017 Priority Product Work Plan and two wholly new categories (Food Packaging and Lead-Acid Batteries) that were added. Two former categories not being evaluated 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
Some changes made in the Final Work Plan, due to stakeholders’ concerns, include:
A copy of the Final Work Plan, the SPF Systems regulatory text, the Profile, and other related materials and additional useful information can be found on our Green Chemistry web portal here.
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.
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