Walmart, California and beyond: The 411 on safer chemical rules
This month, the California Department of Toxic Substances Control announced its first three "priority products" under the Safer Consumer Product Regulations:
1. Children's foam padded sleeping products containing the flame retardant Tris (1,3-dichloro-2-propyl) phosphate (TDCPP or chlorinated tris).
2. Spray polyurethane foam systems containing unreacted diisocyanates (used in home insulation).
3. Paint and varnish strippers containing methylene chloride.
Beyond these initial three, here's what companies need to know about the broader implications of regulations in California and beyond.
Wake up call: Time to get ahead of regulations
Starting with the initial three product categories, if you manufacture or sell children's foam sleeping products, spray polyurethane foams or paint strippers in California, you need to know: Does my product contain any of those three chemicals? If yes, companies have roughly one year to remove the chemical of concern from their products before the Priority Product is officially listed in state rulemaking. They can remove the chemical of concern because it is not necessary (which is the case with flame retardants such as TDCPP in children's foam sleeping products) or can substitute the chemical of concern with an alternative (preferably safer). If a company does not remove the chemical of concern from the Priority Product before the official listing, it must complete an alternatives analysis.
As Helen Holder of Hewlett Packard discussed in a recent webinar, performing an alternatives assessment that meets the California requirements is a major undertaking. Here are examples of draft alternatives analyses that could comply with the California regulations, from the organization I co-chair, BizNGO.
California-compliant alternatives analyses require significant research, reporting and disclosure of information to the public, and may result in a regulatory response. The California regulations do, however, provide companies with a lengthy period to switch to alternatives, reduce exposure from their product or make the case for continued use of the chemical of concern. Roughly 24 months separate the final listing of a Priority Product in rulemaking (about March 2015) and a regulatory response by the state (about March 2017).
Most companies are likely to find it preferable to eliminate the chemical of concern in a Priority Product before the official listing in rulemaking by California in March 2015. In doing so, companies will avoid performing complicated alternatives analyses and can select any alternative they want. However, given the trend against chemicals of high concern to human health or the environment, companies should select a safer alternative.
California's proposed initial Priority Product selection and adoption (click to expand)
Got chemicals of high concern?
The initial three Priority Products are a call to all companies: If you are not paying attention to chemicals of high concern, now is the time. Companies are approaching such chemicals in tiers.
First, start with a small number of manageable chemicals. Walmart (PDF), for example, prioritizes 10 "High Priority Chemicals" (which have not been publicly released).
Second, expand to a broader list chemicals of high concern that typically number in the hundreds. See Bed Bath and Beyond's Restricted Substances List (RSL) (PDF), the European Union's Candidate List of Substances of Very High Concern (151 chemicals), the California Initial Candidate Chemicals List (PDF) (252 chemicals), the Hazardous 100+ Chemicals identified by Mind the Store (119 chemicals), the ChemSec Substitute It Now (SIN) List (626 chemicals) or California's Proposition 65 Chemicals (approximately 800 chemicals).
Third, bundle authoritative lists together into a single "list of lists" of chemicals of high concern. See California's Candidate Chemical List (roughly 2,300 chemicals), Maine's Chemicals of Concern (1,733 chemicals), Minnesota's Chemicals of High Concern (1754 chemicals) and Washington State's High Priority Chemicals (2,158 chemicals). Target and Walmart are following a similar path in amalgamating authoritative information into a singular list.
For the broadest compilation of "lists of lists" and a related chemical database, see the Chemical & Material Library at the Healthy Building Network's Pharos Project.
Selecting safer alternatives
In substituting a chemical of concern, such as methylene chloride in paint strippers, manufacturers at a minimum should select an alternative that is not on the California Candidate Chemicals List or a similar list to avoid future regulatory action. But relying only on lists of high-concern chemicals can lead to regrettable substitutions — using an alternative that is equally or more hazardous to the eliminated chemical.
At this point, companies will want to perform (or will want suppliers to perform) a hazard assessment of alternatives to fully understand how much is known about the alternatives, as well as whether any data gaps exist. Hewlett Packard, for example, requires suppliers to perform assessments of the alternatives they use, via Clean Production Action's GreenScreen for Safer Chemicals open-source screening tool.
Nike, meanwhile, increasingly prefers suppliers that use formulations based on its Green Chemistry Program. And Walmart recommends that companies perform alternatives assessments that align with the Commons Principles for Alternatives Assessment.
The broader implications of regulations
In the bigger picture, the California program is the most recent indicator of a momentous shift underway in the marketplace away from chemicals of high concern. California joins Washington state, Maine, Minnesota, the European Union and major retailers including Target, Walmart and, just last week, Bed Bath and Beyond in targeting the reduction of hazardous chemicals in products.
The Cailfornia Safer Consumer Product Regulations reinforce and expand on existing trends:
• Consumers and retailers want products made with inherently safer chemicals.
• Toxic chemicals in products are a growing liability for brands. Brands can choose to wait for government regulation or market demands, or can get out ahead of these regulations and replace chemicals of high concern with safer alternatives.
• The scope of products categories under concern is growing. Children's products, personal care and beauty care products are all under scrutiny from consumers, retailers and state governments. By including spray foams and paint strippers, California adds a new category of products to state regulation: building products.
▪ The preference is to use inherently safer alternatives. A centerpiece of the California regulations is the avoidance of "regrettable substitutions" — the replacing of a regulated chemical of concern with non-regulated chemical of concern.
The California initiative is unique in that it drives companies to identify safer alternatives to the chemicals of concern. Learn more about how to reduce your company's chemical footprint through the BizNGO Guide to Safer Chemicals.