This article was originally published in Venable's All About Advertising Law blog on October 7, 2013.
Word on the street is that a big law went into effect last Tuesday. President Obama's healthcare law, you say? Okay, fine, that answer is technically correct, but it's not the only landmark legislation that took effect. Moreover, the law we’re referencing did not trigger a massive government shutdown (much to the chagrin of various cosmetic and OTC drug manufacturers).
California's groundbreaking Safer Consumer Products ("Green Chemistry") Regulations officially became effective October 1, 2013. As noted in a blog post a few weeks ago, 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. The implementation of the regulations has four primary steps, the first being the publication of an informational list of Candidate Chemicals before November 1, 2013.
In keeping with the old saying, "If you're not early, you're late," California's Department of Toxic Substances Control (DTSC) issued two preliminary lists on Thursday, September 26th, a whole four days before the law actually took effect! One list identifies hundreds of chemicals that DTSC could eventually deem a Chemical of Concern. A chemical becomes a Chemical of Concern only when it is the basis for a product being listed as a Priority Product.
The other list, a subset of the first (also known as the "Initial List"), contains approximately 150 chemicals that the agency will focus on within the next six months when deciding its Priority Products. Among others, the Initial List contains these chemicals sometimes found in cosmetic and OTC drug products: formaldehyde (nail care products, hair products), cyclotetrasiloxane (moisturizers, makeup, hair products), aluminum (anti-perspirants), benzene, lead, silica/silicon dioxide (crystalline, respirable size), dibutyl phthalate (nail care products and hair sprays), parabens (makeup, moisturizers, hair products, and shaving products), diethanolamine, and mineral oils: untreated and mildly treated.
On April 1, 2014, or 180 days after the Green Chemistry regulations took effect, the DTSC is required to list up to five Priority Products for public comment based on the chemicals in the aforementioned Initial List. All consumer products, save for a very specifically exempted few, could potentially be listed as a Priority Product. This includes anything from hairspray to stereo systems. However, Debbie Raphael, Director of DTSC, told the Los Angeles Times that the first Priority Products under consideration are: nail polish (tolulene interferes with reproduction); carpet adhesive with formaldehyde; and mercury in fluorescent light bulbs. As we stressed before, now is the time for those affected companies to take action, familiarize themselves with the listed chemicals, and pursue alternative, safer product formulations.