In the News

Experts Disagree on Implementation of California's Green Chemistry Initiative

Oct 29, 2009

Members of California's Green Ribbon Science Panel (GRSP) and stakeholders questioned the feasibility of many of the recommendations in the Department of Toxic Substances Control's (DTSC) draft Straw Proposal for Safer Alternative Regulations. The Straw Proposal was issued on October 1, 2009 as a possible plan to implement AB 1879. Signed into law in September 2008, AB 1879 and SB 509 expanded DTSC's authority to regulate chemicals of concern in consumer products. The bill was originally introduced to advance the California Green Chemistry Initiative. (For more information on the initiative, see the PackagingLaw.com article, California's Green Chemistry Initiative: Impact and Update.") Although, comments on the Straw Proposal are due by Nov. 4, DTSC has already pulled the draft from it website, which suggests that it may have already decided to go back to the drawing board.

DTSC has held two public meetings on the Straw Proposal. At the first meeting, held on Oct. 14, GRSP members provided input on the proposal. On Oct. 21, a second meeting was held to allow an opportunity for the public to comment on the proposal. At the beginning of both meetings, Maziar Mozassashi, DTSC Acting Director, announced that the Straw Proposal was not a proposed regulation but rather, was a reflection of all of the comments made during public discussions.

The Straw Proposal includes:

• A list of chemicals of concern;
• A list of consumer product categories of concern (food packaging is one of the categories);
• A list of chemical lists, with the requirement that any chemical on any of these lists in any consumer product would need to be evaluated against hazard data, if any, or tests must be conducted to develop the data;
• A requirement that manufacturers of consumer products determine if any chemical on any of the lists might be released from the product either during the product's use or at disposal, and as currently written, whether or not a release might occur, the manufacturer must perform a life-cycle evaluation of acceptable substitutes; and
• A requirement that information on the presence of listed chemicals in products and the hazard data for the chemicals must be provided to the State for inclusion in a toxics clearing house.

At the Oct. 14 meeting, several of the GRSP members suggested that DTSC propose a shorter, more manageable list of chemicals of concern initially—such as 50—to pilot the process. The number of chemicals on all of the cited chemical lists in the proposal is estimated to be between 2,500 and 10,000.

Some of the science panel members questioned the scope of the Straw Proposal, including the expectation that manufacturers would have to determine which chemicals of concern (on any of the cited lists) were in each of their products sold directly to consumers in California. Other panel members agreed with the scope of the proposal but expressed concern over an exemption process described in the proposal. Some panel members also suggested that the requirement for industry to conduct all of the risk evaluation on expected exposure could lead to a conflict of interest, and that the ultimate decisions on risk should be determined by the State.

Questions Raised on Alternative Analysis

The Straw Proposal requires an alternatives assessment on any chemical in a consumer product that meets any of the hazard criteria listed in the proposal. The 13 hazard criteria include acute toxicology, bioaccumulation, carcinogenicity, aquatic toxicity and hazard to the ozone layer. Under this requirement, a manufacturer must determine if there are any functional alternatives and conduct the same hazard analysis that was done on the original chemical within one year. This section of the proposal was discussed at length at both meetings.

At the Oct. 14 meeting, some GRSP members questioned how a determination would be made on using an alternative chemical with different hazard concerns, since a ranking is not provided. Others asked if human health concerns would take priority when substitutes were considered, and how other factors, in addition to human health concerns, would be weighted. There were also comments on the extent of testing required. GRSP members with experience conducting life-cycle analysis suggested that the proposed requirements for life-cycle analysis are too cumbersome.

At the Oct. 21 meeting, it was suggested that since the assessments will be publicly available, the market will determine what kind of hazards consumers are willing to accept. Concern was also raised about the consistency of results of alternatives analyses from one manufacturer to another for the same type of product. One recommendation was to require a third party to do the alternatives assessments.

Industry raised the issue that in order to substitute for a chemical of concern, other regulatory clearance may be necessary. For example, new food contact substances would require clearance from the U.S. Food and Drug Administration (FDA). Additionally, manufacturers would need to conduct testing to determine if consumers would accept products manufactured with an alternative chemical. This additional testing could take a number of years to complete.

Revising the Straw Proposal

Generally, the science panel members agreed that the Straw Proposal was not workable in it current form; however, there was a wide range of opinions on what changes should be made. A transcript of the meeting held on Oct. 14 can be found on DTSC's website.

During the Oct. 21 meeting, several people pointed out that, as currently written, the Straw Proposal would result in the ultimate ban of many consumer products in the State of California because they contain one or more of the thousands of chemicals currently referenced in the proposal. In addition, since chemical intermediates would be considered consumer products as defined in the current proposal, use of many chemicals in industrial applications would also be banned. A DTSC representative gave the example of styrene, which is used in the manufacturing of latex gloves, but is not present in the finished product. Since styrene is on one of the lists of concern, an alternatives analysis would need to be conducted and, if an alternative is not found, latex gloves could not be manufactured in California.

DTSC staff said that it was not the intent of the legislation to ban every product that contains any of the chemicals on the lists, and that Straw Proposal would be rewritten to reflect this. However, the specifics were not provided. DTSC staff emphasized several times during the Oct. 21 meeting, that those who do not agree with provisions in the Straw Proposal should submit comments by the Nov. 4 deadline.