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American Chemistry Council Opposes Designation of Polyurethane As A Priority Product

The American Chemistry Council (ACC) has requested that the Department of Toxic Substances Control (DTSC) reevaluate its decision to list spray polyurethane foam (SPF) as a priority product. The listing of a priority product under the Consumer Product program denotes that a product contains one or more chemicals of concern. The DTSC’s determination that SPF containing unreacted methylene diphenyl diiscoyanates (MDI) be identified as a priority product triggers a number of requirements, including notification to DTSC and performance of safer alternatives assessments. Ultimately, such assessments may result in further regulation of the priority product.

According to DTSC, its action is based on evidence that exposure to MDI may lead to respiratory and other health problems, particularly in the workplace. The supporting documentation also cites deaths that have been linked to exposure to spray polyurethane paints and resins in the workplace. The ACC opposes this determination based on a number of “unlawful” characterizations of SPF. The ACC made the following claims in connection with its request for reassessment of the SPF as a priority product:

  • SPF fails to meet the requirements for inclusion as a priority product.
  • The designation is vague and capricious since SPF has not been scientifically proven to produce adverse health effects.
  • The DTSC improperly lumps together several separate SPF products into an “oversimplified” category. The DTSC is required to evaluate multiple distinct features of a product including its use, the manner and frequency of exposure, and administrative controls. Here, the ACC claims that the agency did not assess various SPF products individually according to these criteria.
  • The DTSC has not backed up its determination that SPF products pose dangerous risks to people, animals or plants and would cause substantial adverse effects.
  • The DTSC failed to consider safety mechanisms and industry practices that may be implemented to reduce exposure to MDI when using SPF products.

DTSC responded that implementing mitigating measures could be ineffective for those who will not undertake precautions or who undertake inadequate precautions. For instance, it points out that only 64% of construction workers wear proper protective equipment. Thus, the agency maintains that eradicating the chemical of concern or substituting it for a less risky substance are the best options for protecting against occupational exposures.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

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.