California's TSCA alternative takes effect
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October 10, 2013
California's TSCA alternative takes effect

California’s Safer Consumer Products Initiative (SCPI)—so far the most far-reaching state alternative to the federal Toxic Substances Control Act (TSCA)—took effect October 1, 2013.  The initiative starts out slowly but down the road may have strong impact on how chemicals are used in products in California. 

Furthermore, should the SCPI prove effective and efficient and not overly burdensome for California businesses, we may see an attempt to adopt elements of the initiative into proposals to reform TSCA.  Moreover, other states will be closely watching how the SCPI unfolds, with an eye toward possible independent action to address the risks some chemicals pose to human health and the environment. 

Green Chemistry Law

The SCPI was included in California’s 2008 Green Chemistry Law, which required the state Department of Toxic Substances Control (DTSC) to adopt regulations to establish processes to identify and prioritize chemicals in consumer products and evaluate chemicals of concern in consumer products and their potential alternatives.
The DTSC notes that while the SCPI is most often compared to TSCA, the two establish different regulatory regimes for chemical safety. 

“The federal TSCA program is aimed at chemicals management,” states the DTSC.  “[The SCPI] is aimed at product safety from the standpoint of public health and safety.  More specifically, these regulations address harmful chemicals in products.  TSCA, on the other hand, does not concern itself with product safety.”

The DTSC adds that the SCPI was developed in part to address the structural weaknesses in TSCA.  “TSCA places the cost of obtaining data about chemical safety on the United States Environmental Protection Agency rather than requiring chemical companies to develop and submit such information,” says the DTSC.  “Consequently, information about the 80,000 chemicals in commerce is severely limited and there is little to no information on the public health or environmental effects of many of these chemicals.” 

Four steps

The SCPI comprises four steps:

  1. By the end of October 2013, the DTSC must establish an immediate list of approximately 1,200 Candidate Chemicals based on work already done by other authoritative organizations.
  2. The DTSC must then evaluate and prioritize consumer product/Candidate Chemical combinations to develop a list of Priority Products because the products contain a chemical of concern (COC).  All consumer products that contain a Candidate Chemical, which are sold, offered for sale, distributed, supplied, or manufactured in California, are subject to the regulations.
  3. Manufacturers of Priority Products must perform alternatives analyses (AAs) for the product and the COC to determine how best to limit exposure to the COC.
  4. The DTSC will develop and implement regulatory responses to maximize the use of acceptable and feasible alternatives.  Among its options, the DTSC may require the manufacturer to develop an alternative product to replace the priority product.

Exemptions

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Certain products are exempted from the SCPI regulations, including dangerous prescription drugs and pesticides.  Also, the regulations provide a process for any individual or organization to petition the DTSC to either add or remove a chemical or an entire list of chemicals to or from the Priority Products list. 

The SCPI will roll out over several years.  The DTSC says that by April 2014 it will propose up to five priority products based on factors such as extent of use, potential for public exposure to the toxic ingredient, and how the products are eventually disposed.  Stakeholders will have an opportunity to provide input on DTSC’s selection of specific priority products.  A final rule listing the products may take up to a year to develop, says the DTSC, followed by required submissions of preliminary AAs within 180 days.  Once the DTSC states that the preliminary AAs are in compliance, the final AAs must be submitted within 1 year.  The DTSC will then issue its regulatory response.

The SCPI final regulations and supporting documents.

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