This article was originally published in Venable's All About Advertising Law blog on September 23, 2013.
Some would say that doing business in California can sometimes pose extra challenges. Anyone who’s spent any time in the Golden State is, of course, familiar with omnipresent signs like the one above. However, California has just taken a significant step forward in what could be described as an effort to reduce the presence of products that require such signs.
In late August, California approved the Department of Toxic Substances Control's (DTSC's) landmark Safer Consumer Products Regulations. These regulations help implement the State's Green Chemistry Initiative designed to accelerate the use of safer products through a science-based process that evaluates chemicals of concern and identifies safer alternatives. There are four primary steps:
- Establishment of a Candidate Chemicals list, said to contain approximately 230 chemicals (i.e., carcinogens, reproductive toxins, mutagenic toxins, neurotoxins, endocrine disruptors, toxic air contaminants, and water pollutants). This list is expected to grow to 1,200 chemicals.
- Designation of Priority Product/Candidate Chemicals combinations ("Priority Products") by DTSC that will require the assessment of safer alternatives. Examples of such possible priority products that have been discussed are formaldehyde-based hair straighteners, nail polish, carpet adhesive, and furniture seating foam.
- Performance of Alternatives Assessments for Priority Products by manufacturers or other responsible entities, including importers, assemblers, and retailers.
- Identification and implementation of "Regulatory Responses" by DTSC designed to protect public health and the environment. Examples include requiring notice to consumers, establishing end-of-life product stewardship programs, restricting the use of chemicals in a product or the use of a product, or banning sales of a product in California.
These new regulations apply to many consumer products, including cosmetics and over-the-counter drugs, that are sold, offered for sale, distributed, supplied, or manufactured in California. Exemptions include: dangerous prescription drugs and devices; dental restorative materials; medical devices, packaging associated with dangerous prescription drugs and devices, dental restorative materials, and medical devices food; and pesticides.
Effective October 1, 2013, these regulations signal the end of a regulatory process that began over five years ago. Pursuant to the regulations, the DTSC’s forthcoming actions include (1) publishing an informational list of Candidate Chemicals on its website by November 1, 2013; (2) proposing an initial list of up to five Priority Products for public comment by April 1, 2014; and (3) drafting guidance for performing Alternative Assessments.
Is your company prepared?
The cosmetic industry is likely to take a large hit, and the provisions provide for criminal and civil penalties of up to $25,000 per violation. Companies whose product(s) fall under this large umbrella should familiarize themselves with the chemicals posted on the Candidate Chemicals list in the upcoming months. Rest assured that as soon as DTSC releases this list, we will post a blog discussing the nitty-gritty details.