On July 15, 2016, the California Department of Toxic Substances Control published its first proposed Priority Products regulation, identifying “children’s foam-padded sleeping products containing [the flame retardants] TDCPP or TCEP” as Priority Products under the Safer Consumer Products Regulations. Comments must be submitted no later than August 29, 2016. DTSC also will be holding a public hearing on August 29, 2016.
The proposed regulation has been a long time coming. The Safer Consumer Products (SCP) Regulations were first promulgated in 2013, five years after the authorizing statute, AB 1879, was enacted. DTSC first identified children’s sleeping products containing the flame retardants in a draft Priority Products list in March 2014. DTSC has had to attend to other significant challenges, including the California Legislature’s scrutiny of its operations, which no doubt contributed to delays. However, the recent amendments to the federal Toxic Substances Control Act — and their unusual, labyrinth-like preemption provisions — also may have motivated DTSC to move more quickly on the Priority Products list, before possible EPA action might preempt California action.
The SCP Regulations establish a complex process by which “responsible entities” (manufacturers, importers, retailers and assemblers) will be required to analyze chemicals of concern in specified consumer products — “Priority Products” — to determine whether safer alternatives exist. The outcome of these alternatives analyses will determine what regulatory response DTSC will impose on the Priority Product or the selected safer alternative; regulatory responses range from product information requirements to end-of-life management requirements, to sales bans. Although there are so-called “off-ramps” allowing responsible entities to avoid conducting alternatives analyses for Priority Products, such off-ramps themselves require notifications to DTSC within strict time frames. Perhaps the best course of action for responsible entities seeking to avoid any regulatory obligation under the SCP Regulations: cease all manufacturing and sales of the Priority Products before the Priority Product regulation is finalized.
Interestingly, DTSC acknowledges in its Initial Statement of Reasons and in its Economic Impact Statement that flame retardant-containing foam already is being phased out for use in children’s sleeping products. Which makes one wonder why those products need to be regulated at all.