New regulations shift responsibility to manufacturers to seek safer alternatives for harmful ingredients in consumer products
The Safer Consumer Products regulations are the first of a kind, offering California the opportunity to lead the way in producing safer versions of goods already in demand around the world. The regulations, which took effect in October of 2013, require manufacturers or other responsible entities to seek safer alternatives to harmful chemical ingredients in widely used products. At the State of the San Francisco Estuary conference last fall, Meredith Williams, Deputy Director of the Department of Toxic Substances Control, discussed the new regulations and how they are being implemented to improve California’s environment and public health, and specifically water quality.
Meredith Williams began by saying that she was hoping to make connections between the world of toxic chemicals and the Department of Toxic Substances Control and this community, the scientists, the managers, and the policy makers. “I’m here to recruit you,” she said. “I really want to make a case that we do have opportunities to look at the contaminants that are getting into our watersheds, our wastewater streams, and our stormwater drains, and really think about whether or not we can do a better job of controlling those contaminants at the product level and what those opportunities are. I want to get you on board with that idea and understand how to use the safer consumer product regulations as a management tool in the toolkit to really develop new ways of managing toxic chemicals.”
Ms. Williams pointed out that this has already been done, presenting a graph of DDT and matabolites showing the decline in DDT in sediments throughout the bay. “I want you to notice where that line is versus where the decrease started to happen,” she said. “The bottom line is that we started to understand the problems that were caused by DDT as well as its degradants, and we started to do something about it. We moved to other solutions in terms of pesticides.”
Another example is quarternary ammonium compounds, a common type of chemical that was used in disinfectants, detergents, and fabric softening products in the 1980s. “The quat that’s discussed here is the DDTMAC and it’s just one of the family of quats,” she said. “It was used quite widely in quite a number of daily use consumer products. It’s not that problematic for humans as it is respiratory sensitizer and a skin sensitizer, but it’s very problematic in the aquatic environment. It’s highly persistent; it has a level of aquatic toxicity, and there are concerns about some of the metabolites.”
“Once Europe became aware of that, they started to do some voluntary phase outs, so what you see here is a drop off in the presence of DDTMAC in sewer sludge in Austria,” she continued. “That happened in Europe; yet no management actions were taken in the US, no policy changes were made in the US, and despite that, even in New York, you saw great drop offs in the amount of DDTMAC in sewage sludge in New York. In Europe, they got down to say 6% of their highest levels, in the US we got down only to 15% of the highest levels, so the impact wasn’t so great, but nevertheless, a change somewhere else had a global impact.”
The drop in flame retardants in the San Francisco Bay is another remarkable story, she noted. “The elimination of PBDEs has been accompanied by dropping levels in cormorant eggs, bivalve tissue, a number of other media where we can see that by controlling what’s going into the consumer products, we’re actually able to impact what’s getting into the bay,” she said.
“Now, those are three great examples, but there are problems with all of those examples,” she said. “I showed you that the decline in DDE and DDT started to happen before the actual ban, so we’re slow out of the gate. We start to realize these problems are there, and it takes us awhile to move into action. The other thing is that while I’m glad there’s no DDT, but we have a plethora of other pesticide problems that we’re battling on multiple fronts. There are so many of them out there that we get into the game of playing chemical whack-a-mole. So we need to do it differently; we need to take a different approach, and that’s really what the safer product regulations are all about.”
The Safer Consumer Products Regulation
Ms. Williams then went through the Safer Consumer Products Regulations, the framework, and the steps in the process.
“The framework is a very proactive framework,” she said. “It’s not risk management. It is hazard reduction and hazard elimination. Not just trying to figure out quantitatively how much risk we are going to live with, but really challenging ourselves to eliminate those hazards in the first place. It’s the difference between taking a mitigation and treatment approach after the fact as opposed to a pollution prevention approach.”
Another fundamental tenet of the regulations is to avoid those regrettable substitutes, she said. “We all like getting those bottles that say they are BPA free, but are BPS really better? What other problems have we introduced as a result of making that switch? A specific goal of the green chemistry statute was to break the cycle of chemical by chemical ban that was becoming pretty common in California.”
It also represents a shift to producer responsibility, Ms. Williams said. “Rather than the government saying thou shalt eliminate this chemical, we turned to the manufacturers and say, we need you to take a closer look at how you are using this chemical in this product, so we are pushing that burden onto the manufacturers,” she said. “If the manufacturers aren’t available or if they are not engaged with us, we turn to the importers and if the importers aren’t available, then we move to the actual retailers. Retailers have tremendous power in our economy. When WalMart says they are going to get rid of ten hazardous chemicals, that means we all just got rid of ten hazardous chemicals across the economy.”
There are four steps in the process:
Identify list of candidate chemicals: The first step is to identify the chemicals in the universe of potentially hazardous chemicals about which we are concerned.
Priority products: Those chemicals are then associated with specific consumer products and product chemical combinations.
Alternatives analysis: “We ask manufacturers to ask some very fundamental questions: Is it really necessary to have this chemical in this product or might there be a better alternative? Once we adopt a priority product, this product chemical combination into regulation, that triggers the alternative analysis by that manufacturer to consider their current product design or formulation against other alternatives.”
Regulatory response: “Based on their recommendation and how well they make their case, we make our decision about whether or not we’re on board.”
Ms. Williams then walked through the steps in greater detail.
Step 1: Identify list of candidate chemicals
Ms. William said that rely on authoritative bodies around the world to identify the chemicals. “There are about 2000 chemicals on the list, and a number of the authoritative bodies list are very water-centric,” she said. “I will note that we are not looking at things that are used exclusively for medical and pharmaceutical applications and other substances that are excluded and called in a lot of different California regulations that defines what a consumer product is, so it’s well defined for California.”
Step 2: Select priority products
Key prioritization principles are the potential exposure to the candidate chemicals in the product and the potential for exposures to contribute to or cause significant or widespread adverse impacts. “These are the statutory requirements about what we need to do,” Ms. Williams said. “Is there a potential for exposure, and might that exposure cause harm? That is pretty broad and general. They are not giving us numerical targets; they are not saying go find the worst thing possible, they are saying consider these factors in a very broad, very holistic way.”
“That’s really frustrating,” she acknowledged. “If you are a manufacturer, you want to know what the formula is to pick the priority product. Everybody wants to know, what are you going to pick? But we don’t have a simple way to tell people; especially because it’s in the early days of these regulations. It’s never been done anywhere in the world, and that means we have to be trying multiple approaches and find out what works.”
“We have a robust process of engaging with stakeholders from the nonprofit and the scientific community, as well as from the manufacturers who may have particular expertise in the chemicals and the products, and once we have those engagements and feel like we have a good handle on whether or not we think the product is worth the effort of going through an alternatives analysis, we actually do go through rulemaking to name the product chemical combination.”
Step 3: Alternatives analysis
The regulation then triggers the third step, the alternative analysis by the manufacturer, she said. “The alternatives analysis requires the manufacturer to ask those fundamental questions about whether or not the chemical is necessary, whether or not they avoided regrettable substitutes when they considered alternatives, and to really think in a holistic way, across the product lifecycle and all the different stages,” she said. “How well they do that and how well they explain their thinking and show their work really dictates how well we can judge what an appropriate regulatory response is.”
The criteria manufacturers need to consider in the alternatives analysis was called out again in the green chemistry law from 2008. “You’ll notice I’ve highlighted a few of them that are a radically different actually from many approaches that just talk about chemical substitution and human health. We’re looking more broadly here and we’re challenging manufacturers to look at the tradeoffs.”
Step 4: Regulatory response
There are a wide variety of regulatory responses available, such as no response, requesting additional information be provided to DTSC, providing additional information to consumers, enacting restrictions or prohibitions on sales, and others. The process of implementing this regulation is still new, she reminded. “We’ll know when we get there, but it is a flexible framework, which is really remarkable,” she said.
Priority Product Selection
Ms. Williams then turned to the process used to select the priority products. “We selected our initial products about a year ago and we’re drafting regulations for those three products, but I want to focus on where we go from here,” she said. “We have published a priority products workplan, and that will govern where we put our energy and attention for the next three years. Within that plan, we identified product categories so that certain market sectors can have a sense of where our priorities are, where we are going to look, and who we might want to engage with.”
She presented a list of policy principles that the documents lays out. “I’ve highlighted the ones that are most relevant to this audience,” she said. “Some of those policy priorities are things we want to protect and some of them are data sources we think are particularly valuable to us.”
The work plan names seven product categories: Beauty, personal care, and hygiene products; furnishings, building products, office machinery consumable products, cleaning products, clothing, fishing and angling equipment, she said. “All of them could potentially have a water quality impact but four of them in particular most decidedly do,” she said. “That was part of the reason we chose them. Personal care products that wash off of our skin and end up down the drain and have to be treated by wastewater treatment plants. Cleaning products that are used inside and outside, not only do they have potential to harm workers, but we also see that they are having aquatic impacts, both through the stormwater system and the wastewater system. Clothing is another product category we chose, and then fishing and angling equipment with heavy metals, particularly sinkers.”
Using the framework to improve water quality
Ms. Williams then turned to the opportunities that exist to use the framework to redesign products to improve water quality. “We’re seeing clothing that so engineered – the more I learn about it, the more shocked I am,” she said. “Between the flame retardants, the anti-microbials, the anti-wrinkle treatments, and all – what this means is that quite a range of chemicals is showing up on clothes, as well as concerns about what might be on the cleaning products applied to those clothes, and then all of it goes down the drain. We know from a very small study [of particular chemical] that after just a few washes, 99% of the initial treatment of that clothing washed down the drain, and then the degradates become more problematic and their aquatic toxicity becomes problematic.”
“It’s really quite dramatic. I could go on,” she said. “I’m not even talking about the electronics and anything else associated with the washing machine, but that is a point of control. If we can do a better job about what’s going in and what’s coming out of our washing machine, maybe we can have an impact.”
Another product are copper brake pads. “It wasn’t done under the Safer Consumer Products Program, but that’s the kind of thinking that led to changes in the green chemistry law,” she said. “SB 346 set levels from 2014 through 2025 for copper and a number of other metals in brake pads. It would be very hard to meet TMDLs, and it’s not even clear that we’ll still get there with this in place, but the TMDL’s for copper are very challenging in stormwater, and getting control of what is coming out of our brake pads is critical to doing that.”
Ms. Williams said that it’s important because it really happened as a result of a very deep collaboration. “It started because the case was made from a scientific basis of the fact that copper was loading up the watershed. It was driven by the manufacturers who said we want clarity; we want to understand what we need to do. They got on board, they worked with the environmental council and the state. It’s a very collaborative effort. We will move on to the regulations; we’re about to move on to the rulemaking on that over this fall.”
Your participation is needed
“Lastly, I want to enlist you,” Ms. Williams said. “This is an audience that has the ability to think about management actions and has the ability to think about monitoring, so I really hope that you’ll take advantage of the program. We accept petitions, and the ability for us to consider those petitions is highly dependent upon how well the argument is substantiated about why we should consider either adding a chemical to our candidate chemicals list or adding a product chemical combination to our priority products list.”
I think there are a number of monitoring opportunities for us,” she said. “Sewage sludge tells us about what’s getting in to our wastewater streams, our stormwater streams; it really fingerprints what we are consuming and what products we are using,” she said. “We need to take advantage of some of the emerging methodologies so that we can look more broadly and more rapidly.”
“I challenge you all to think differently about emerging contaminants,” she said. “It may require that we think about families of chemicals, chemical groupings, and really move things more rapidly.”
“I don’t know if I was successful, but I did want to recruit you and get you on board with taking advantage of the safer consumer products program,” Ms. Williams said.