For now packaging materials are not being considered as one of the initial groups that will be subject to new detailed reporting requirements and alternatives analysis required under California's Safer Consumer Products Regulations (SCPR). But that could change.
The SCPR were mandated by the State’s 2008 Green Chemistry Initiative, which authorized the California Department of Toxic Substances Control (DTSC) to establish a framework for identifying, prioritizing, evaluating and developing alternatives to the use of certain chemicals in consumer products in California. While food is exempted from the definition of “consumer product” in the regulations, which went into effect last October, food packaging is included.
The SCPR establishes a four step process to identify and regulate products that may expose consumers to suspect chemicals.
Step 1—to establish a list of “Candidate Chemicals”—was completed by DTSC in October 2013. The initial list of 150 Candidate Chemicals includes various types of phthalates, bisphenol-A (bpa), styrene, cadmium, lead and mercury.
DTSC also published a longer informational Candidate Chemicals list of 1,200 chemicals. Chemicals are included on one of the two lists if an authoritative body or organization has identified a chemical as exhibiting at least one of eight hazard traits: carcinogenicity, reproductive toxicity, mutagenicity, developmental toxicity, respiratory sensitivity, endocrine disruption, neurotoxicity and/or persistent bio-accumulative toxicity.
Step 2 requires DTSC to develop a list of Priority Products (consumer products that contain one or more of the Candidate Chemicals). Criteria for selecting Priority Products includes potential for exposure, significant adverse impacts or end-of-life effects, availability of information, availability of other government programs to regulate and the availability of safer alternatives. DTSC anticipates selecting between five and 10 Priority Products per year.
The Department proposed a draft list of three priority products in March 2014: (1) spray polyurethane foam systems containing unreacted diisocyanates; (2) children’s foam padded sleeping products containing Tris(1,3-dishloro-2-propyl) phosphate; and (3) paint and varnish strippers with methylene chloride. DTSC will be adding more Priority Products over the next three years.
Step 3 requires responsible entities (manufacturers, importers, assemblers and retailers) of Priority Products to inform DTSC that their products have been listed as a Priority Product and then perform an Alternatives Analysis (AA) for the product to identify how environmental and public health impacts of the chemical may be limited.
Step 4 is for DTSC to issue a "regulatory response," which could include (1) requiring supplemental information; (2) requiring additional information be provided to consumers; (3) imposing product use restrictions; (4) banning the product; (5) requiring engineering or administrative controls; (6) requiring an end-of-life management program; or (7) when no viable safer alternative is found, requiring the manufacturer to initiate research to find a safer alternative.
More Priority Products
The first draft of DTSC’s three-year Priority Product Work Plan, released in September 2014, identifies seven product categories from which Priority Products will be selected over the next three years. The seven product categories are: (1) beauty, personal care and hygiene products; (2) building products (including paints, adhesives, sealants and flooring); (3) household, office furniture and furnishings; (4) cleaning products; (5) clothing; (6) fishing and angling equipment; and (7) consumable and refillable components of office machinery.
Food packaging is not included on the draft list at this point, but it will bear close watch to ensure that packaging materials are not added as a part of another product category or directly. Stakeholders were invited to participate in two workshops on the draft Plan that were held in September 2014.
Author George Misko is a partner at Keller and Heckman. Founded in 1962, the respected law firm has a broad practice in the areas of regulatory law, litigation and business transactions, serving both domestic and international clients. Reach him at [email protected].