California taking next step on Green Chemistry Initiative

California is a step closer toward creating the nation’s most ambitious program to regulate toxic substances in consumer products after publicly releasing in late June the mechanics of how its so-called Green Chemistry Initiative would work. 

“Study after study have shown that many consumer products are not safe, resulting with more and more being recalled,” said Maziar Movassaghi, acting director of the Department of Toxic Substances Control, which will implement the program.  “This draft regulation is the first of its kind in the nation and it essentially shifts the way government, industry and the public think about the products that end up in our homes,” Movassahi said in a statement announcing the release of the 61-page document called “Draft Regulation for Safer Consumer Products.” 

Settling on exactly how the program operates is a contentious issue between environmentalists and manufacturers.  Businesses urge the state to move slowly in creating a list of carcinogens, neurotoxins and other harmful compounds found in everything from toys to turbines.  Environmentalists and other advocacy groups like the Breast Cancer Fund seek swifter declarations about a chemical being harmful, and speedier removal of the chemical from whatever product contains it.  

Nearly two years have already passed since the 2008 passage of the two bills dubbed the Green Chemistry Initiative – an idea initially proposed by Gov. Arnold Schwarzenegger’s administration.  The central focus of green chemistry is to find safer alternatives to toxic substances, ultimately shifting the focus of environmental protection from how to sequester those toxic substances at the end of a product’s life to creation of safer products that no longer contain the toxic compounds.  

While they spar over implementation, manufacturers and environmentalists supported creation of a more global assessment of toxic chemicals than the piecemeal system of lawmakers introducing bills to ban individual chemicals.  “This was born out of frustration among legislators and the advocates on both sides of having to deal with these issues in particular bills,” said Bill Magavern, director of Sierra Club California.  “We all came together and agreed on this legislation that puts authority in the executive branch to take action when the science dictates – knowing we’d argue about the implementation,” Magavern said. 

Modeled in part on the European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals program – REACH – California’s law orders Movassaghi’s department to identify and regulate “chemicals of concern” in consumer products.  A priority list is to be created with the most toxic and the widest exposure to humans at the top. Consideration of a chemical’s effect on more sensitive segments of the population, like infants and toddlers, is also a factor in prioritizing.  

Based on its assessment of a chemical’s harmfulness, the department can take a variety of actions including ordering a manufacturer to conduct an “alternatives assessment” to find a less harmful substitute, requiring product labeling or additional consumer information, restricting or prohibiting the use of the chemical, or forcing a manufacturer to take responsibility for safely disposing of products containing the chemical. 

Part of the law also requires the department to create a clearinghouse on its webpage to make information about the risks of exposure to various chemicals more readily available to the public. 

The scope of the law is vast. Estimates are some 100,000 toxic chemicals are used in production today.  While pesticides, pharmaceuticals and food packaging are exempted because other state agencies regulate them, a sampling of the 68 companies and trade associations who comprise the Green Chemistry Alliance illustrates the law’s sweep. 

Del Monte, Boeing, Amway, the Toy Industry Association, Proctor & Gamble, the American Apparel and Footwear Association, the California Restaurant Association, Johnson & Johnson and Chevron are just of few of the alliance’s diverse members.  “Each member can be affected differently,” said John Ulrich of the Chemical Industry Council of California, the alliance’s co-chair. “I’m amazed at how tightly people have stuck together and taken the time to understand each other’s issues.” 

The draft regulations are not the final regulations as groups have until July 15 to offer comments. The department has also held two workshops to brief interested parties on the draft.  However, it appears the Schwarzenegger administration intends to take the advice of a “Green Ribbon” panel created by the law to advise the department on implementation. 

One of the panel’s recommendations was to start slowly and initially assess chemicals that already have a large body of science establishing their toxicity and harmful levels of exposure.  To that end, the department’s initial batch of “chemicals of concern” includes the roughly 750 substances listed through Proposition 65 as carcinogens or causing birth defects or other reproductive harm.  Passed by voters in 1986, Proposition 65 requires warning labels be placed on products, from beer to bedroom slippers, containing any chemicals on the list. 

Also included on California’s initial list are the 16 chemicals classified by the U.S. Environmental Protection Agency as “persistent biocummulative and toxic.” Among them are lead, mercury and hexachlorobenzene.  That’s fine by manufacturers and business interests.  “The reasons we settled on Proposition 65 and the U.S. EPA lists is primarily because those have been scientifically vetted over the years. Criteria has been applied to those chemicals,” Ulrich said. “That’s why we have agreed those chemicals are a good starting point.“ 

Environmentalists, long critical of the slowness in getting the Green Chemistry Initiative operational, see the decision on the initial list as only more delay.  “The point of this legislation is to get the most toxic chemicals out of our consumer products and start a shift to safer alternatives. My biggest concern is it will be years and years before we actually see changes in our products,” said Magavern. 

Magavern and other environmental groups want the state’s list of chemicals expanded to include those polluting waterways as well.  Other critics of the law note that manufacturers of a product containing a “chemical of concern” can continue to sell the product until the department makes a final determination.  Such a decision can be prolonged by conducting an “alternatives assessment” to seek a substitute chemical that is benign or, at a minimum, less harmful. 

Members of Ulrich’s alliance are concerned that testing of chemicals by the department or outside entities conducting an alternatives assessment could lead to the revealing of trade secrets. The regulations include protections aimed at preventing that occurrence.  “One of the elephants in the room is trade secrets, intellectual property” Ulrich said. “Not everything is patented. Companies use proprietary information like issues associated with the market: Who your customers are, marketing share, where you’re marketing, how you market.” 

The regulations provide some latitude for “small businesses” which are defined as those with 25 or fewer employees and an average of $1 million or less in gross receipts over the past three years or the businesses’ life, whichever is less. 

Final regulations should be completed this fall.

For more information about the regulations, visit the California Department of Toxic Substances Control