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DTSC Releases Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs

The California Department of Toxic Substances Control (DTSC) has released a discussion draft of its Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs, pursuant to the Safer Consumer Products (SCP) Program. DTSC is accepting comments on the draft here until March 23, 2018, and will be holding a public workshop on March 7, 2018.

PFASs encompass a large family of chemicals containing a carbon and fluorine backbone. These chemicals have unique characteristics, being resistant to heat, water and oil. PFASs have been used in consumer products; in carpets and rugs, these chemicals have been used to confer resistance to dirt and soil.

DTSC has released the Profile in advance of formally proposing carpets and rugs containing PFASs as Priority Products under the SCP Program. Priority Products are product-chemical combinations which, when identified via a formal rulemaking process, must undergo alternatives assessments to evaluate whether safer alternatives exist. PFASs are identified as Candidate Chemicals under the SCP Program (and therefore may be selected in a Priority Product) because the California Environmental Contaminant Biomonitoring Program has identified this class of chemicals as Priority Chemicals for biomonitoring.

In identifying carpets and rugs containing PFASs in this draft Profile, DTSC states,

This product-chemical combination meets the identification and prioritization factors outlined in the Safer Consumer Products Regulations: (1) there is potential for human and other organism exposure to PFASs in carpets and rugs; and (2) the exposure has the potential to contribute to or cause significant and widespread adverse impacts.

This is not the first time that carpets and rugs containing PFAS chemicals have been regulated. In 2013, the U.S. Environmental Protection Agency issued a Significant New Use Rule (SNUR) under the federal Toxic Substances Control Act (TSCA), restricting the manufacture and importation of certain PFAS chemicals in carpets and rugs. Under a SNUR, the manufacture or importation of the SNUR-identified substances is prohibited unless the manufacturer or importer first notifies EPA and receives approval. This SNUR authority is not without teeth, and recent amendments to TSCA have significantly expanded the scope of US EPA’s review and authority to impose restrictions on the manufacture and importation of SNUR chemicals.  Notably, the 2013 PFAS SNUR  restricted the manufacture and importation of the articles themselves, i.e., carpets and rugs containing PFAS chemicals, an unusual use of US EPA’s SNUR authority. Given already existing federal restrictions on this product-chemical category, it remains to be seen what substantive benefit would result from DTSC’s identifying such products as Priority Products under the SCP Program.

 

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.