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DTSC Releases Final Priority Product Work Plan

On April 16, 2015, the Department of Toxic Substances Control released its final Priority Product Work Plan as required by the Safer Consumer Products (SCP) Regulations. This follows DTSC’s September 14, 2014 release of its draft Work Plan, a subsequent public comment period and two public meetings. The final Work Plan, though very similar to the September 2014 draft, contains some notable changes.

The California Safer Consumer Products (SCP) Regulations implement AB 1879, California’s green chemistry law.  AB 1879 was passed in 2008, the same year that DTSC released its Green Chemistry Initiative report outlining the goals and strategies for a greener economy. Effective October 2013, this program is designed to encourage a market shift towards a greener economy by identifying “Candidate Chemicals” and “Priority Products” containing Candidate Chemicals (at which point they are designated “chemicals of concern”).  The program requires alternative assessments, based on lifecycle analyses, to be conducted on such Priority Products to determine whether there are safer alternatives.  The Regulations require DTSC to prepare a Priority Product Work Plan (Work Plan) every three years identifying product categories from which DTSC may select Priority Products.

The recently released final Work Plan identifies seven product categories:

• Beauty, Personal Care and Hygiene Products
• Building Products
• Household, Office Furniture and Furnishings
• Cleaning Products
• Clothing
• Fishing and Angling Equipment
• Office Machinery (Consumable Products)

According to DTSC there is no prioritization in terms of the order of this list and all categories hold the same level of importance in the Work Plan. However, there is special interest in the products within these categories meant for, or with potential exposure to, children. Additionally, according to DTSC products within these categories involving flame-retardants are of particular concern due to their association with endocrine disruption and reproductive, neurologic, immune impairment and cancer.

Changes from the September 2014 draft include:

• Additional detail added to statements about the number of product-chemical combinations that DTSC intends to propose each year as Priority Products
• Edits made to correct nomenclature/clarify certain points
• Carpet padding and insulation added as examples in narrative for “Building Products” category
• Curtains with flame retardants added as an example in narrative for “Household/Office Furniture and Furnishings” category
• Wall coverings with flame retardants added as an example in narrative for “Building Products” category
• Revised narrative for “Clothing” category to clarify that the category does not include protective wear for occupational safety purposes
• Clarified scope of “Office Machinery” category
• Edited scope of “Fishing and Angling Equipment” category

But many aspects of the September 2014 draft remain unchanged including:

• No categories added or subtracted
• Conditions for Work Plan revisions before expiration date remain: 1) If DTSC is instructed to take action on a chemical and/or product through a legislative mandate or executive order, or 2) in response to a granted petition as described in Article 4 of the SCP Regulations
• The Work Plan will still not identify specific Priority Products or Chemicals of Concern
• The Work Plan will still not identify any responsible entities/requirements on manufacturers for compliance with the SCP regulations

There are also slight differences in the priorities of each Work Plan. They are listed below, and those bolded in the “September 2014 Draft” list below are also identified in the “Final Work Plan” list.

September 2014 Draft:

• Priorities

o Product categories with products with clear pathways for dermal, ingestion or inhalation exposure
o Product categories with chemicals found in biomonitoring studies
o Product categories with chemicals observed in indoor air quality studies
o Product categories that include product-chemical combinations that impact sensitive subpopulations
o Product categories that contain chemicals that have aquatic resource impacts and/or which have been observed through water quality monitoring

Final Work Plan:

• Priorities

o Product categories that provide clear pathways for the exposure to one or more Candidate Chemicals
o Product categories that contain chemicals that have been observed in indoor air and dust studies
o Product categories that may impact children

 Implementation of this Final Work Plan relies heavily on both research and stakeholder support. The engagement of stakeholders is vital to the building of confidence between manufacturers, legislators, non-governmental organizations (NGOs), and consumers regarding regulations, decisions and changes resulting from this Work Plan. Businesses should continue to monitor these developments carefully and ensure that DTSC implements the Work Plan in a manner consistent with the SCP Regulations’ requirements, the authority of AB 1879 and the Green Chemistry Initiative’s goals.

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.