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California's New Safer Consumer Product Regulations Have Arrived: Companies Should Assess Impact on Consumer Products Marketed in the State of California
Melissa Miller Proctor, Esq., Sandler, Travis & Rosenberg, P.A.
California's new Safer Consumer Products regulations ("SCPR") (Division 4.5, Title 22 CCR Chapter 55, §69501 et seq), which require companies to report their use of certain chemicals in common consumer products1 and potentially switch to safer alternatives, officially took effect on October 1, 2013. The objective of the new regulations is to reduce toxic chemicals in consumer products that are marketed in the state of California.
Under California law, a consumer product is any product or part of a product that is used, purchased or leased for use by a person for any purpose. Thus, the SCPR apply to finished consumer goods (or components contained in an assembled product) that are sold, distributed, supplied, manufactured in and/or used in the state of California. Affected companies include manufacturers, importers, assemblers and retailers; however, the SCPR require that only one of these parties must satisfy the new requirements in order to comply for them all. The primary obligation for compliance falls first and foremost on the manufacturer and then, by default, on the importer, assembler and retailer - in that order.
As part of the SCPR, California's Department of Toxic Substances Control ("DTSC") will first identify so-called "Candidate Chemicals," consisting of carcinogens, reproductive toxins, mutagenic toxins, neurotoxins, endocrine disruptors, toxic air pollutants and water pollutants, that are used in a wide array of common consumer goods. To date, the DTSC has published an "informational" list of roughly 1,200 chemicals that may eventually be designated as Candidate Chemicals. An "initial" list of approximately 150 chemicals, drawn from the larger "informational" list, has also been rolled out identifying those chemicals that will be among the first to be reviewed and considered for formal designation as Candidate Chemicals. The DTSC is required to publish on its website the first list of Candidate Chemicals by October 30, 2013.
The DTSC is also responsible for designating common consumer goods marketed in California as "Priority Products" if they contain one or more Candidate Chemicals. Such products will be subjected to various notification and "Alternative Analysis" requirements. The first list of Priority Products, consisting initially of no more than five items, is required to be published by the DTSC on April 1, 2014. At this early stage of the SCPR implementation, no one can say with any certainty which consumer goods will wind up on the list of Priority Products; however, the DTSC has informally indicated that products such as nail polish, toys, carpets, and furniture may be targeted. Once the Priority Products list is issued, the Candidate Chemicals contained in them will be considered "Chemicals of Concern" ("COCs").
Within 60 days of the publication of the list of Priority Products, affected companies will be required to submit "Priority Product Notifications" to the DTSC confirming that they do in fact sell a product in California that contains one or more COCs. This information will be made publicly available on the DTSC's website.
If companies decide to stop selling the product in question in California, they may, at the same time as the filing of their Priority Product Notification, submit a separate "Product Removal Intent Notification" to the DTSC. If companies decide that they will remove the COC from the product or replace the COC with a safer alternative, they can also file a "Chemical Removal Intent Notification" or "Product-Chemical Replacement Intent Notification," respectively, with the DTSC. However, after these "intent" notices are filed, companies must ensure that they subsequently submit a "Confirmation Notification" to the DTSC showing that they have taken the promised action; otherwise, the companies will be required to move forward with the Alternative Analyses and subject themselves to the DTSC's regulatory response.
What if the manufacturer fails to comply with the SCPR by failing to submit the required notifications or perform the Alternative Analysis? In that event, importers will be notified by the DTSC and directed to comply with these requirements in lieu of the manufacturer. Similarly, if the importer fails to comply, the DTSC will contact the assemblers and retailers, requesting that they take the necessary SCPR actions.
Priority Products are prohibited from being distributed in new channels of commerce in California unless the COC(s) are completely removed or an "Alternative Analysis" is performed. In conducting an Alternative Analysis, companies must assess: (1) the impact of the COCs on public health and the environment; (2) how exposure to the COCs can be reduced; and, (3) whether there are safer chemicals that can be used in their products. Nevertheless, products currently held in companies' inventory may continue to be sold in California. A preliminary Alternatives Analysis must be filed with the DTSC within 180 days of the Priority Product's listing and the final report must be submitted within twelve months thereafter.
In response to Alternatives Analyses, the DTSC may respond by (1) requiring product warning labels; (2) imposing use restrictions during manufacturing processes; (3) restricting the locations where products may be sold; (4) requiring safety and/or hazardous waste measures to reduce COC exposure; (5) requiring additional R&D activities to identify safer alternatives; and/or, (6) banning the products from the state of California. Companies that fail to comply with the SCPR will be identified as being non-compliant on the DTSC's website. They may also be subjected to maximum civil fines of $25,000 per violation.
So, what is a company marketing consumer goods in the state of California supposed to do? As the new regulations recently went into effect, manufacturers, importers, assemblers, and retailers placing consumer goods in the stream of commerce in California are strongly urged to take the following steps as quickly as possible:
- Thoroughly read the SCPR and gain a firm understanding of the notification and analysis requirements as well as the timeframes for compliance.
- Review the initial list of Candidate Chemicals and work to identify products that may be impacted by the SCPR.
- Train organizational departments on the new requirements and designate a team that will be responsible for developing the necessary policies and procedures that will be required to ensure timely compliance with the SCPR.
- Create a formal work plan for monitoring and assessing new Candidate Chemicals and Priority Products as they are designated by the DTSC.
- Inform supply chain partners of the new SCPR requirements and take steps to require them contractually to respond to data requests about the chemicals used in the products.
- Consider strategies for SCPR compliance including whether the company is willing to remove any COCs from items designated as Priority Products, replacing COCs with safer alternatives, ceasing the sales of Priority Products in California altogether, or carrying out the required Alternative Analyses.
- Implement formal processes for timely compliance with the SCPR Priority Product Notification, intent notification, and Alternative Analysis requirements.
- Document the company's SCPR processes in writing.
- Subject the company's activities under the SCPR to formal, internal auditing processes.
Although the SCPR have only recently gone into effect, the clock has started ticking with respect to the designation of Candidate Chemicals, Priority Products, and COCs, which will quickly be followed by the very tight notification and analysis deadlines imposed on companies. Companies that may be impacted by the new rules are urged to act quickly to ensure that they are able to respond proactively to these aggressive new requirements.
 Products that are exempt from the SCPR include items that are:
- Excluded from the definition of "consumer product" in §25251 of the Health and Safety Code (e.g., food, pesticides, pharmaceuticals, etc.);
- Regulated by one or more federal or California state regulatory programs; or,
- Regulated by treaties or international agreement to which the U.S. adheres
provided that they: (1) address the same adverse impacts, exposure pathways, and adverse waste/end-of-life effects that could be the basis for the product being listed as a Priority Product; and, (2) provide equivalent public health and environmental protection that could be afforded to a Priority Product.
Melissa Miller Proctor is a Member of Sandler, Travis and Rosenberg, P.A. and the Firm's Export Practice Leader, resident in the Scottsdale, Arizona office. With significant experience in export controls, customs laws and regulations, and international trade, Melissa works closely with clients to expand their markets while ensuring their regulatory compliance. She may be reached at (480) 305-2110 or via e-mail at email@example.com.