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SCP Regulations: DTSC’s Informational Candidate Chemicals List May Not Be As Informational As You Think….

Effective October 1, 2013, the Safer Consumer Products 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 — which DTSC will call “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 (think Proposition 65 Plus) to end-of-life management requirements, to sales bans.  And, if this process weren’t complex enough, watch out:  DTSC’s “Informational” Candidate Chemicals List, which it released on September 26, 2013, may not necessarily reflect the actual universe of chemicals that may be deemed chemicals of concern under the new program.

DTSC’s Candidate Chemicals List represents the critical first step in the new program’s cascade of key operative elements.  Only Candidate Chemicals may be identified as chemicals of concern in Priority Products; only Priority Products undergo alternatives analyses; and regulatory responses may be imposed on Priority Products or selected alternatives only after completion of alternatives analyses.  In crafting the Regulations, DTSC understandably wanted to use a starting point that would not require it to engage in endless, resource-intensive rulemaking just to add new chemicals to the Candidate Chemicals List.

Rather than establish its own defined universe of chemicals, DTSC identified 23 source lists from various jurisdictions (including, e.g., the California Proposition 65 list).  As those source lists are updated under the rules of those other jurisdictions, the Candidate Chemicals List is automatically updated and expanded without any additional action by DTSC. The Informational Candidate Chemicals List necessarily will always lag behind and, ultimately, cannot be fully relied upon.  Entities whose products may be regulated under the Safer Consumer Products Regulations must be careful to monitor the 23 underlying source lists to determine how chemical additions to those lists may affect their businesses under the new California 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.