In 2013, the Department of Toxic Substances Control’s Safer Consumer Products regulations outlined a framework for the Department to regulate product-chemical combinations that require manufacturers to evaluate alternatives. The program selects products based on the potential for exposure to a chemical in the product to contribute to adverse impacts to human health or the environment. The Safer Consumer Products program is unique, capable of regulating any product, except for drugs or pesticides.
The Safer Consumer Products program basically regulates chemicals in consumer products. “We serve as source control for contaminants of emerging concern in California’s aquatic systems which can be one of the most effective ways of mitigating impacts of CECs in places like San Francisco Estuary,” she said. “Our program is really unique in that it places the burden on manufacturers to evaluate safer alternatives because they know their products better than we do.”
HOW THE PROGRAM WORKS
The program has a four-step process:
Step 1 – Candidate Chemical list
The Department of Toxic Substances Control has developed an informational list of Candidate Chemicals based on established authoritative lists, such as 303c and 303d lists of impaired waterways under the Clean Water Act, California notification levels, and Biomonitoring California Priority Chemicals. As each of those lists are updated, the list of Candidate Chemicals is automatically updated. Chemicals can also be added to the list through the rulemaking process or by the public through a petition. For a product to be selected, it must include a chemical from the Candidate Chemicals List.
The Safer Consumer Products program cannot regulate pesticides, prescription drugs, radioactive chemicals, or natural toxins, but otherwise if the chemical is on the candidate chemical list, the program can potentially take action.
Dr. Doherty acknowledged that there’s not a progressive authoritative list for contaminants for the aquatic environment, so as a result, some of the emerging contaminants, such as Galaxolide or tire-related chemicals are not listed.
“That is one unfortunate side effect of our candidate chemical list, but we do really have a wide range of chemicals,” she said.
The next step is to select priority products or a specific product-chemical combination that has been determined to have the potential to cause harm. The priority product selection comes from the program’s three-year priority product work plan, which narrows down the expanse of consumer products somewhat. These products include beauty and personal care products, furnishings, building products, cleaning products, food packaging, consumable office supplies, and lead acid batteries.
This Priority Products list is the set of product-chemical combinations DTSC has proposed for regulation under the Safer Consumer Products regulations. However, publication of the draft list of products imposes no new regulatory requirements on manufacturers until DTSC finalizes it by adopting regulations.
As they evaluate the product categories in the work plan, they are looking for the potential exposure to a candidate chemical in the priority product and for the potential for one or more of those exposures to contribute or cause significant or widespread adverse impacts.
“The word potential means that the bar for us to take action is a lot lower than other regulatory setups across the country and the world, so that allows us to be a lot more progressive,” said Dr. Doherty. “We can also consider a really wide range of adverse impacts that relate to the aquatic environment as well as humans, so it gives us a leg-up to be a little more precautionary in our approach. We also have the ability to take special consideration sensitive subpopulations, such as the pregnant women, the young, the elderly, environmental justice communities, as well as environmentally sensitive habitats, endangered and threatened species, impaired environments – those are all things we can really pay special focus to.”
Once a priority product is listed, manufacturers that make that product have to conduct an Alternatives Analysis to evaluate alternatives and determine if there’s a safer option. Each responsible entity is required to submit a report on the completed Alternatives Analysis to the Department of Toxic Substances Control (DTSC); that is followed by a round of public comment. The Department then evaluates the report to determine if the chosen alternative creates adverse public health or environmental impacts need to be remedied by a regulatory response.
“We’re basically asking them to do an informed substitution,” Dr. Doherty said. “The goal of this is to avoid the regrettable substitutes that we saw with BPA. So we’re asking them to slow down and evaluate if the chemical in the product is necessary, is there a safer alternative, and can we avoid regrettable substitutes, so that’s a complete life-cycle analysis that they have to do with the chemical and the product. It’s two stage; there are all kinds of details, but basically it’s their evaluation of their products.”
The program has a number of regulatory responses based on what is submitted in the report, such as asking for additional information or safety measures, restrict or prohibit sales, require end of life product stewardship, or fund additional research.
The regulations went into effect in 2013, so the program is still relatively new. The priority products they are working on are in four different stages: The first stage is research, which isn’t necessarily on a specific product, but more of a topic as they are working to get more information on. The second stage is where they have written a lengthy product profile to justify the concern and they are moving towards regulations. The third stage is it is a regulated product and the alternatives analysis is in process. The fourth stage is the regulatory response.
Children’s foam-padded sleeping products with TDCPP or TCEP flame retardants: Dr. Doherty said they didn’t receive any notifications for those, so they don’t think those products are being manufactured with those flame retardants. They did their own testing and confirmed that to be the case.
Spray Polyurethane Foam with unreacted MDI: They received an abridged Alternative Analysis in August of 2019. The manufacturers have evaluated it and determined there is no alternative, so the program is moving straight to regulatory response. The public comment period closed in November.
“I did want to flag this because this process will happen with all of our priority products,” Dr. Doherty said. “We really rely on our stakeholders to comment on these Alternatives Analysis and help crowdsource this evaluation, so stay tuned for future priority products that might be something that you know something about.”
Methylene chloride paint strippers: The preliminary Alternative Analysis, which is the first stage of a two-stage process, was submitted in July. A notice of deficiency was issued to the manufacturers in August around hazard and exposure deficiencies found in the report and the revised Alternatives Analysis is due at the end of October.
Proposed priority products
There are four proposed priority products:
Laundry detergents with nonylphenol ethoxylates: These laundry detergents go down the drain, the nonylphenol ethoxylates go through wastewater treatment plants, and break down to more toxic byproducts.
Carpets and rugs with PFASs
Toluene in nail products
Paint strippers with N-methylpyrrolidone.
The four priority product profiles are on their website and they are currently in the process of developing the rulemaking documents for those products.
1,4-Dioxane in personal care and cleaning products: This is a contaminant found in laundry detergents, dish detergents, and shampoos. While that is not as much of an aquatic toxic concern, it is in our water supply and it’s a potential carcinogen that’s very hard to remove, said Dr. Doherty. “Speaking about climate resilience and the ability to continue to recycle water and reuse it in more beneficial ways, that’s the main driver, so we’re continuing to work on that.”
Zinc in tires: The California Stormwater Quality Association filed a petition to list zinc in tires as a priority product. “The cool thing about petitions is that is a way we can go out of our workplan and we can address something else, so in this case, it would be tires,” Dr. Doherty said. “A lot of the concern was that, particularly in Southern California, the tires kind of break up as they go down the road, they have 1% zinc in them, they get into the aquatic environment and they can leach out zinc which is toxic to aquatic organisms. Staff has submitted a recommendation to management on that, and we are just waiting.”
Food packaging: They recently started a research topic on food packaging. The chemicals they are concerned about and evaluating include PFASs, which is used in grease proofing paper board and similar products; ortho-Phthalates; PVC packaging; Bisphenol A (BPA) and its alternatives; and then polystyrene which are things like coffee cups and foam clamshells. There are multiple pathways for food packaging to be a source, such as breaking down into microplastics, consumers rinsing out cans and the bisphenol could go down to the wastewater treatment plant to the environment. While PFASs and the polystyrene are the two that they are focusing more on for aquatic concerns, people who have been studying CECs in the aquatic environment will recognize all of these as chemicals that could be of concern, she said.
DATA NEEDS FOR PRIORITIZATION
Dr. Doherty said that in terms of data, they don’t have the very high bar that some regulatory agencies have, but they still need data that helps make their case. This includes chemical-specific exposure data to be able to prove there is potential for exposure; this can be monitoring data from the aquatic environment such as surface water, groundwater, sediment, and biota. It can also include data from wastewater treatment plants, stormwater, or recycled water that helps connect the dots between the aquatic environment and the human environment.
They need chemical-specific source identification. It can be really hard to know where chemicals found in the aquatic environment are coming from, so the more data that they can get to help us better understand that, the easier it is for them to take action. They also need chemical specific hazard data. Dr. Doherty said that the aquatic environment is oftentimes not as thoroughly evaluated from a hazard perspective as the human environment, so that data is always really helpful.
“Prioritization efforts for California and the San Francisco Bay like what the Regional Monitoring is doing is really helpful for us,” she said. “ There’s a huge number of chemicals and a lot of products to evaluate, so groups like the RMP and others that can go through and say, here’s the things to really focus on, that really helps us focus our efforts.”
YOUR INVOLVEMENT NEEDED
Dr. Doherty concluded by encouraging people to be involved by petitioning them to add a chemical or priority product as was done for zinc in tires, or provide comments during the public comment periods.
QUESTIONS AND ANSWERS
Question: Since this is a state agency run program, how do these manufacturers respond to you, being that it’s at the state level and not the federal level?
Dr. Doherty: “Our regulations apply to any product that is sold or put into the marketplace in California, so a company does not have to comply if they don’t sell in California, but as you all know, we’re the 8th or 9th largest economy in the world, so most manufacturers are willing to play ball and they know it’s not really an option. It’s not a ban – that’s one thing we try to get across. We’re not necessarily banning all PFASs in carpets and rugs; what we’re saying is that this is something that is of concern and manufacturers need to do an alternatives analysis to consider other safer options and let us know what they find, and we can follow up with that.”
Question: What happens if the manufacturer says yes it’s needed and there’s no safer alternative like the one that you mentioned. What do regulatory measures mean?
Dr. Doherty: “If they do an abridged Alternatives Analysis, there’s a number of regulatory responses that automatically go into place. One of them is that they have to provide funding for green chemistry research, so part of the goal is to try and create those alternatives. At that point, we would just evaluate the regulatory response option, so we could say thank you for that evaluation, we think you’ve got sufficient safety measures in place, or we could ask for more labeling, we could ask for more education, or we could do a sales prohibition or ban. So the regulatory response is manufacturer-specific; it’s not across all manufacturers of a product, it’s specific to manufacturer, so each manufacturer is going to have their own story and their own considerations to take into account when they do that alternatives analysis.”