California "Safer Consumer Product Alternatives" Regulation Continues Trend Towards Greater Chemical Scrutiny

California is known for setting trends in this country related to music and entertainment. But it also serves as a bellwether for environmental regulation. This pattern may be continuing with the Safer Consumer Product Alternatives (SCPA) regulation, a measure under development by the California Department of Toxic Substances Control (DTSC) as part of the state’s Green Chemistry Initiative.

The SCPA, which does not require approval by the legislature, will direct state regulators to establish a priority list of chemicals of concern, and a corresponding list of products containing those chemicals. Businesses selling into the state—including manufacturers, distributors, retailers and licensees—will need to:

• Provide regulators with the name and contact info for all participants in the product’s supply chain;

• Conduct a life-cycle analysis of the product’s human health and environmental impacts, considering raw materials sourcing, manufacturing, transportation and disposal/recycling;

• Prepare a similar analysis of substitute chemicals, along with a proposal to redesign the product to reduce concentrations of chemicals of concern in favor of safer alternatives.

The process of establishing the priority chemicals and priority products list will consume the next three years, and compliance obligations under the regulation will commence in December 2013. A parallel proposal by Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) would require that data developed under these assessments be made available to consumers under the state’s Proposition 65 law. Currently, only cancer and developmental/ reproductive effects must be reported under Prop 65.

Taken together with activity under CPSIA, TSCA and REACH, the SCPA embodies a demand by decision-makers for a more comprehensive suite of data on the chemical content of products, exposures, and the potential for human and environmental harm as a condition of market access. The hazard traits that must be evaluated and under the draft law are quite extensive, and include neurotoxicity, endocrine disruption, epigenetic toxicity, ototoxicity and phtotoxicity.

Readers may wish to submit comments to the agency before the expiration of the comment period on November 1, 2010.

REACH Right-to-Know Provisions: More Thoughts

Retailers and their upstream suppliers should not be surprised to see a flood of such inquiries going forward. To help facilitate that result, at least one NGO has posted a sample letter for use by supporters.

The time and paperwork entailed in responding to these information requests will prompt many companies to view these inquiries as "a death by a thousand cuts." Some will simply abandon the market while others may reformulate to non-SVHC ingredients - which some would argue is the ultimate purpose of right-to-know legislation.

Regardless, chemical management by hazard in the absence of an appreciation of exposure and risk appears to be the modus operandi for regulators and NGOs for the foreseeable future.

Retailers May be Violating REACH Right-to-Know Provisions

One of the lesser-known provisions of the sprawling REACH law is the right of consumers to demand information on the chemical content of products they purchase. The Ecologist reports today that two major European retail chains are failing to meet these obligations.

Titles IV and V of the law require that sellers of products containing chemicals listed as substances of very high concern (SVHC) notify their customers of this (customers could be downstream producers utilizing a chemical in their own product, as well as retail consumers). Generally, the threshold for notification is the presence of an SVHC in a concentration of 0.1 percent. The reporting obligation can be triggered by the addition of a substance to the SVHC candidate list, which currently contains several dozen chemicals but is expected to grow exponentially in coming years.

Reporting duties can also be triggered by a customer request for such information. In this case, at least the name of the chemical and information allowing the safe use of the product must be provided to the customer within 45 days. In a recent investigation by the European Environmental Bureau (EEB), that NGO sent 158 information requests to 60 retailers and vendors in the EU. EEB contends that 50 percent of the requests were not answered at all, while 75 percent received legally insufficient responses. EEB goes on to recommend that companies selling into Europe establish electronic chemicals management systems, utilize third-party testing, and deliver certification manifests through the supply chain.

Compliance Challenges for Chemical Companies

An excellent article by James A. Kosch, partner at LeClairRyan, on the need for the chemical industry to adapt to a changing regulatory climate.