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It’s Finally Here — DTSC’s Draft Priority Products List

Today the California Department of Toxic Substances Control announced its Priority Products List under the new Safer Consumer Products Regulations.  This is a long-awaited key step in the implementation of DTSC’s new and expansive program which, according to Cal/EPA Secretary Matt Rodriquez, is intended to “minimize chemical risks in consumer products” and “safeguard consumers across California.”  Manufacturers, importers, retailers and assemblers — “responsible entities” under the program — will be required to undertake complex and resource-intensive alternatives analyses of their Priority Products as specified in the regulations, unless they are able to use one of the several alternatives analysis “off-ramps.”  Priority Products ultimately also will be subject to regulatory responses imposed by DTSC based on specified criteria; regulatory responses include product bans.

The Priority Products are:

  • Children’s foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate, also known as “TDCPP” or “Chlorinated Tris”
  • Spray polyurethane foam containing unreacted diisocyanates
  • Paint strippers containing methylene chloride

Today’s announced Priority Products list is draft only, and not part of the formal Administrative Procedure Act rulemaking process that is required to finalize the list and trigger the responsible entities’ subsequent regulatory obligations.  DTSC will hold public workshops in May and June 2014 to receive input on this draft list from interested persons.  Depending on the input DTSC receives, today’s draft Priority Products List may be revised.  After this informal public input process is complete, DTSC will prepare formal rulemaking packages for each Priority Product, probably in the late summer/early fall of 2014.  At the end of that formal rulemaking process, when the Priority Priority List is finalized as formal regulations, the regulatory requirements of alternatives analyses and regulatory responses will be triggered for those final Priority Products.

Affected businesses should examine the draft list closely, along with the regulatory criteria for identifying Priority Products, to determine whether there is any basis for challenging the list during the informal and formal public input processes.  And here, “affected businesses” not only means responsible entities, but all entities in a supply chain that may be directly or indirectly affected by the imposition of regulatory requirements on Priority Products.  In addition, all responsible entities should begin evaluating, now, what their regulatory responsibilities may be and what they need to do to prepare to carry out those responsibilities.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.