Legislation Improves CA Program to Ensure Safer Products

Senator Ben Allen (D-Santa Monica), Chair of the California Senate Environmental Quality Committee, introduced Senate Bill 392 this week to help improve California’s regulation of toxic chemicals in consumer products. The bill would amend California’s innovative “green chemistry” program to improve its functioning and ensure better oversight of toxic chemicals in consumer products that we all bring into our homes every day.

Legislative Hearing on California's Green Chemistry Program, February 12, 2019

Americans continue to be exposed daily to toxic chemicals in their homes—in their drinking water, in food, in household and personal care products, in furniture, and other products. Additionally, workers are exposed to toxic chemicals in job settings ranging from nail salons to oil refineries. California’s green chemistry initiative, the Safer Consumer Products Program, and its mission of making products safer and driving innovative chemistry is thus critical for protecting public health.

A recent report by the Public Health Institute (PHI) carried out a 10-year retrospective review of the program and outlined the program’s strengths and the areas where the program could use improvement. As the report shows, the Safer Consumer Products Program has tremendous promise. It is an essential component of addressing the problem of toxic chemicals up front rather than after the fact—i.e. focusing on preventing toxic exposures in the first place rather than cleaning up or fixing the effects of that exposure. It reflects an approach of asking the question of whether the use of toxic chemicals or chemicals of concern is necessary, evaluating the alternatives, and moving us towards safer chemicals and products, especially with a view to the protection of vulnerable populations.

We are very supportive of all these goals and heartened by the direction that the program is headed in: for instance, with its evaluation of stain-resistant (and toxic) “Teflon” chemicals (known as PFAS) in carpets and rugs. The program is taking on a huge category of potential exposure to a hazardous class of chemicals and looking at the whole class to ensure that we don’t end up on what we often refer to as the “toxic treadmill” where one hazardous chemical is replaced by a similar chemical, with all the attendant risks. That’s an all too familiar story.

However, in spite of some positive steps at the program, as the PHI report shows, because of a number of structural factors, the program has been unable to deliver fully on its potential. In a period of ten years, we have seen only a handful of product-chemical combinations addressed and only one that has made it all the way through the process, and even that did not result in regulatory action. Some of this is to be expected as a program gets off the ground, but it has been 10 years since the program was initiated. It is clear that structural factors play an important role as well, as the PHI report shows—and SB 392 addresses a number of these factors.

One key issue is the program’s lack of access to product ingredient data—program staff have had to resort to Google searches and unsuccessful voluntary industry requests to get information on product ingredients. The result has been long delays and hesitation to consider all the principal ingredients making a product unsafe. SB 392 provides the Department with clearer, stronger data collection authority that still preserves the trade secret protections already in the green chemistry law. 

The second issue is a lack of deadlines and clear requirements for the program to outline timelines for action, which would drive transparency and accountability. The current three-year workplans the program produces are not specific enough to be meaningful, and thus facilitate the lengthy delays that have been an unfortunate feature of the program to date. In addition, the program currently doesn’t have direction to develop timelines for and to plan to address all chemicals of concern that might be used for the same purpose or function—such a focus would ensure that the program doesn’t have to revisit the product in a few years if another problematic chemical is used to replace the initial chemical. SB 392 would require a clear articulation of timelines in the workplan and would require the consideration of all chemicals of concern that serve the same function to address these issues. These improvements will help with the need for a better prioritization process that the PHI report highlights.

A third factor is the one-size-fits-all approach of requiring a new company-driven analysis to consider alternatives to the chemical under review for every manufacturer and product—even when information on alternatives is available from reliable sources. When such information is available, SB 392 creates a fast-track option that allows the agency to move faster—and proceed directly to regulation after an opportunity for public notice and public comment. This is important for allowing the program to address more of the huge universe of products and chemicals on the market in a timely manner. The fast-track process could also reduce the burden on companies, especially on more resource-strapped smaller companies, which would otherwise have to conduct their own alternatives analyses.

(Finally, there is an urgent need for substantially better and more funding for the Department of Toxic Substances Control (where the program is housed) and its important mission of protecting the health of communities, including the Safer Consumer Products Program. The funding sources should be sustainable, and meet anticipated program needs. While SB 392 does not address funding, this remains an urgent need.)

With the improvements proposed in SB 392, we believe that the program can deliver on its vast potential.

This blog provides general information, not legal advice. If you need legal help, please consult a lawyer in your state.

About the Authors

Avinash Kar

Senior Attorney, Sustainable Agriculture and Antibiotics and Western Toxics, Health and Food, Healthy People & Thriving Communities Program

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