DTSC Announces Proposed Priority Products Subject to California Green Chemistry Initiative

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DTSC Announces Proposed Priority Products Subject to California Green Chemistry Initiative

The California Department of Toxic Substances Control (DTSC) has identified the first three groups of products that may become “Priority Products” subject to reporting and alternatives assessments requirements under California’s strict new Safer Consumer Products (SCP) Regulations.

The three groups of products on this initial list of proposed “Priority Products” are:

  • Children’s foam padded sleeping products containing the flame retardant Tris(1,3-dichloro-2-propyl) phosphate (TDCPP or Tris)
  • Spray polyurethane foam (SPF) systems containing unreacted diisocyanates
  • Paint and varnish strippers and surface cleaners containing methylene chloride

Rulemaking on the proposed “Priority Products” list is expected to begin in late June 2014, with the final “Priority Products” list to be finalized by the following year by adoption of regulations.

If the product-chemical combinations announced by DTSC end up on the list of final “Priority Products,” manufacturers and other responsible entities (including importers, assemblers and even retailers) of these products will be required to notify DTSC and either remove the product from sale, reformulate to remove or replace the chemical of concern in the product, or perform a complex “Alternatives Analysis” to retain the chemical in the product.

As widely expected, the initial “Priority Products” list targets children’s foam padded sleeping products containing the flame retardant Tris(1,3-dichloro-2-propyl) phosphate (TDCPP or Tris), such as nap mats and pads in soft-sided portable cribs, infant travel beds, portable infant sleepers, playards, play pens, bassinets and nap cots.

In addition, the initial “Priority Products” list targets all paint and varnish removers, paint and varnish strippers and surface cleaners that contain methylene chloride.  Spray polyurethane foam systems containing diisocyanates, both professional and consumer grade, are also proposed to be subject to regulation.  Such products are used for insulation, roofing, sealing and filling of voids and gaps.

TDCPP, methylene chloride, and toluene diisocynate are known carcinogens and exposures to the chemical to Californians above the no significant risk level require a warning under Proposition 65.  TDCPP was recently listed in October 2011 as a chemical regulated by Proposition 65.

The announcement of these three product groups as proposed “Priority Products” does not trigger any duty on product manufacturers until the DTSC finalizes the list of priority products by adopting regulations.  However, manufacturers of children’s foam padded sleeping products containing TDCPP, spray polyurethane foam systems containing diisocyanates, and paint and varnish strippers and surface cleaners containing methylene chloride are well advised to be proactive and take steps to determine whether the chemical can be removed from their products or replaced with a safer alternative chemical.

Conkle, Kremer & Engel regularly assists businesses to develop plans to ensure compliance with California’s ever-changing regulations, including the Safer Consumer Products Regulations and Green Chemistry Initiative.

14
MAR
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Beauty Industry, California Trade Regulations, Green Chemistry Initiative, Manufacturing, Personal Care Products, Proposition 65, Regulatory Compliance, Safer Consumer Products Regulations

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Starting a Fire: "Tris" Listing Increases Risks of Prop 65 Claims

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Starting a Fire: "Tris" Listing Increases Risks of Prop 65 Claims

Tris / TDCPP is a common flame retardant additive used in the manufacture of polyurethane foam, resins, plastics, textile coatings and rubber. Tris / TDCPP is found in a wide variety of common products such as upholstered furniture and padding. California’s Office of Environmental Health Hazard Assessment (OEHHA) recently added the chemical Tris(1,3-dichloro-2-propyl) phosphate (chlorinated Tris or TDCPP) to its ever-growing list of chemicals “known to the State of California to cause cancer or reproductive toxicity.” As a result, Tris / TDCPP is now subject to Proposition 65, California’s Safe Drinking Water and Toxic Enforcement Act of 1986.

Prop 65 has a well-earned reputation as a “bounty hunter” statute, and is presently the subject of reform legislation, AB 227. This notorious “right to know” law does not ban any particular chemical from being used in products. In most cases it simply requires a generic warning label if a product contains chemicals found on the OEHHA’s Prop 65 list.

Because of the recent addition of Tris / TDCPP, products containing that chemical now must have a warning label in order to comply with Prop 65. Manufacturers and distributors who use outdated labeling and inadvertently fail to include the required warning are likely to be targeted by lawyers and claimants looking for violations on which they can capitalize. The penalties imposed by Prop 65 include fines as well as liability for the plaintiff’s attorney’s fees and costs.

Prospective Prop 65 plaintiffs are required to serve a “Notice of Violation” and wait at least 60 days before they can file a lawsuit. (California Health and Safety Code section 25249.7(d)) A review of the 159 Notices of Violation with respect to Tris / TDCPP served in the past 6 months reveals that just two law firms are actually behind the onslaught of Prop 65 notices regarding Tris / TDCPP:

  • The Chanler Group of Berkeley, California, through attorney Josh Voorhees and the firm’s “usual plaintiffs” (Peter Englander, Laurence Vinocur, Russell Brimer and John Moore) – 146 of the 159 Notices (92%).
  • Lexington Law Group of San Francisco, California, through attorney Mark N. Todzo and the firm’s plaintiff, Center for Environmental Health – 13 of the 159 Notices (8%).

The products identified in these notices have included foam-cushioned upholstered furniture, such as chairs, ottomans, stools and benches, foam-cushioned mattress toppers, back and seat cushions, car seats, and foam mats and pads for children and infants.

Manufacturers and distributors should promptly assess whether their products contain Tris / TDCPP. CK&E’s lawyers are experienced in helping clients take action to protect themselves from Prop 65 liability, and to help put out the fire if a Notice of Violation is delivered.

2
APR
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Advertising and Labeling, Fashion, Manufacturing, Proposition 65, Regulatory Compliance

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