The attached article includes links to topical blog posts and websites referenced in the interview. CK&E wishes to thank BIR’s Mike Nave for taking the initiative to disseminate information about these important industry issues. BIR proved again that working in the beauty industry without reading BIR is like working in finance without reading The Wall Street Journal.
The three groups of products on this initial list of proposed “Priority Products” are:
- Children’s foam padded sleeping products containing the flame retardant Tris(1,3-dichloro-2-propyl) phosphate (TDCPP or Tris)
- Spray polyurethane foam (SPF) systems containing unreacted diisocyanates
- Paint and varnish strippers and surface cleaners containing methylene chloride
Rulemaking on the proposed “Priority Products” list is expected to begin in late June 2014, with the final “Priority Products” list to be finalized by the following year by adoption of regulations.
If the product-chemical combinations announced by DTSC end up on the list of final “Priority Products,” manufacturers and other responsible entities (including importers, assemblers and even retailers) of these products will be required to notify DTSC and either remove the product from sale, reformulate to remove or replace the chemical of concern in the product, or perform a complex “Alternatives Analysis” to retain the chemical in the product.
As widely expected, the initial “Priority Products” list targets children’s foam padded sleeping products containing the flame retardant Tris(1,3-dichloro-2-propyl) phosphate (TDCPP or Tris), such as nap mats and pads in soft-sided portable cribs, infant travel beds, portable infant sleepers, playards, play pens, bassinets and nap cots.
In addition, the initial “Priority Products” list targets all paint and varnish removers, paint and varnish strippers and surface cleaners that contain methylene chloride. Spray polyurethane foam systems containing diisocyanates, both professional and consumer grade, are also proposed to be subject to regulation. Such products are used for insulation, roofing, sealing and filling of voids and gaps.
TDCPP, methylene chloride, and toluene diisocynate are known carcinogens and exposures to the chemical to Californians above the no significant risk level require a warning under Proposition 65. TDCPP was recently listed in October 2011 as a chemical regulated by Proposition 65.
The announcement of these three product groups as proposed “Priority Products” does not trigger any duty on product manufacturers until the DTSC finalizes the list of priority products by adopting regulations. However, manufacturers of children’s foam padded sleeping products containing TDCPP, spray polyurethane foam systems containing diisocyanates, and paint and varnish strippers and surface cleaners containing methylene chloride are well advised to be proactive and take steps to determine whether the chemical can be removed from their products or replaced with a safer alternative chemical.
Conkle, Kremer & Engel regularly assists businesses to develop plans to ensure compliance with California’s ever-changing regulations, including the Safer Consumer Products Regulations and Green Chemistry Initiative.
Navigating Civil Regulatory Issues: CK&E Presentation Highlights Key Regulations for Beauty Companies Doing Business in California
Ms. Burke’s presentation about legal regulatory issues for personal care product companies doing business in California included an overview of the California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative including the new Safer Consumer Products Regulations. Conkle, Kremer & Engel’s materials from the BIW event, including the “Navigating Civil Regulatory Issues” presentation and its “Resource Guide for Regulatory Compliance,” are available for download on CK&E’s Regulatory Compliance web page.
Co-presenter Donald Frey, an industry veteran, regulatory expert and product development and innovation consultant, presented on key regulatory issues from the business perspective, including how to effectively deal with regulators. Mr. Frey has generously agreed to share his presentation, available for download here.
Among the questions and answers covered after the presentation were the addition of titanium dioxide (airborne, unbound particles of respirable size) to the Proposition 65 list of chemicals, responsible entities for purposes of compliance with the Safer Consumer Products Regulations, and the determination of organic ingredients under the National Organic Program standards.
Conkle, Kremer & Engel attorneys are frequent speakers at events of interest to the beauty industry due to their expertise in representing manufacturers, distributors, suppliers, retailers and salons in all aspects of their business, including the challenges of regulatory compliance.
CK&E’s Amy Burke to be a Featured Speaker at Upcoming Beauty Industry Presentation on Legal Regulatory Issues
Ms. Burke will be speaking on legal regulatory issues for personal care product companies doing business in California, including California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative.
Co-presenter Donald Frey is an industry veteran and a product development and innovation consultant of Frey Consulting. Mr. Frey will present on key regulatory issues from the business perspective, including how to effectively deal with regulators.
Beauty Industry West is a non-profit industry trade organization that educates and provides resources and a networking platform for companies and entrepreneurs who want to develop their own personal care and beauty brands.
Conkle, Kremer & Engel has decades of experience in the personal care industry. Our attorneys are pleased to participate in trade organizations like Beauty Industry West and to share their experience with members of the industry.
There will be a public review and comment period following publication of the Priority Products list. It has been widely speculated that nail polish, formaldehyde-based hair straighteners, carpet adhesives and furniture seating foam are among the possible Priority Products that may be identified first by DTSC.
Once a product is identified as a Priority Product, manufacturers or other responsible entities (including importers, assemblers and even retailers) will be required to notify DTSC that their product is a priority product. The manufacturer or other responsible entity then has some unpleasant options: It can remove the product from sale, reformulate to remove or replace the chemical of concern in the product, or perform a complex “Alternatives Analysis” to retain the chemical in the product. The Alternatives Analysis report must be submitted to DTCS for evaluation to determine if there are adverse environmental or public health impacts associated with the product that can be remedied by regulatory responses. The regulatory responses could require product warnings to consumers, restrictions on the use of the chemical during manufacture, place of sale restrictions, administrative controls, further research regarding alternative ingredients, end-of-life disposal requirements, or even a ban on sales of the product in California.
Manufacturers, retailers, importers and assemblers of consumer products for sale or distribution in California should diligently keep informed about developments in the DTSC’s “Candidate Chemicals” list (currently 1,060 chemicals), as well as the development of the Priority Products list. Manufacturers should also consider whether reformulation of their products to exclude the priority chemicals from the “Initial Candidate Chemicals” list is possible. In addition, it is important that businesses establish clear agreements among manufacturers, importers, distributors, retailers and others in the supply chain specifying who will be responsible for complying with California’s tough new regulatory program, including responding to DTSC if a product is identified as a priority product. Conkle, Kremer & Engel’s lawyers stay current on the latest developments, and guide the firm’s clients through the thicket of expanding regulatory issues affecting their businesses.
The 164 chemicals found on the “Initial Candidate Chemicals” list, from which the Priority Products will be identified by DTSC, are:
|1,1,1,2-Tetrachloroethane||1,1,1-Trichloroethane; Methyl chloroform|
|1,3-Butadiene||1,3-Propane sultone; 1,2-Oxathiolane 2,2-dioxide|
|2,4,6-Trinitro-1,3-dimethyl-5-tert-butylbenzene; musk xylene||2,4,6-Tri-tert-butylphenol|
|2-Methylaziridine (Propyleneimine)||2-Methylphenol, o-Cresol|
|4,4′-Methylenedianiline; 4,4’-Diaminodiphenylmethane (MDA)||4-Bromophenyl phenyl ether, Bromophenyl Phenyl Ether|
|Aromatic Azo Compounds||Arsenic and inorganic arsenic compounds|
|Asbestos (all forms, including actinolite, amosite, anthophyllite, chrysotile, crocidolite, tremolite)||Benzene|
|Benzene, Halogenated derivatives||Benzotrichloride|
|Benzyl chloride||Beryllium and Beryllium compounds|
|Biphenyl-3,3′,4,4′-tetrayltetraamine; Diaminobenzidine||Bisphenol A|
|Bisphenol A diglycidyl ether polymer; [2,2′-bis(2-(2,3-epoxypropoxy)phenyl)-propane]||Bisphenol B; (2,2-Bis(4-hydroxyphenyl)-n-butan)|
|Bromate||Butylbenzyl phthalate and metabolite|
|Cadmium and cadmium compounds||Captan|
|Carbon monoxide||Carbon tetrachloride; CCl4|
|Chlorinated Paraffins||Chlorine dioxide|
|Chloroethane; ethyl chloride||Chloroprene; 2-chlorobuta-1,3-diene|
|Chromium hexavalent compounds (Cr (VI)||Chromium trioxide|
|Cobalt metal without tungsten carbide (including dust and cobalt compounds)||Cresols, Cresol mixtures|
|Cumene, [ isopropylbenzene]||Cyanide and Cyanide compounds|
|Cyclotetrasiloxane; Octamethylcyclotetrasiloxane (D4)||Diazomethane|
|Dibromoacetic acid||Dibutyl phthalate and metabolites|
|Dichloromethane; methylene chloride||Dicyclohexyl phthalate and metabolite|
|Diesel engine exhaust||Diethanolamine|
|Diethyl hexyl phthalate and metabolites||Diethyl phthalate and metabolite|
|Diisobutyl phthalate and metabolite||Di-isodecyl phthalate and metabolite|
|Di-isononyl phthalate and metabolites||Dimethyl sulfate|
|Di-n-Octyl Phthalate and metabolites||Dodecamethylcyclohexasiloxane (D6)|
|Emissions, Cokeoven||Epichlorohydrin; 1-Chloro-2,3-epoxypropane|
|Ethylene dichloride; 1,2-Dichloroethane||Ethylene Glycol|
|Ethylene oxide; oxirane||Ethylene Thiourea|
|Ethyleneimine, Aziridine||Ethyl-tert-butyl ether|
|Formaldehyde||Fuel oils, high-sulfur; Heavy Fuel oil; (and other residual oils)|
|Gasoline (automotive, refined, processed, recovered, and other unspecified fractions)||Glutaraldehyde|
|Glycol ethers||Glycol ethers acetate|
|Hexabromocyclododecane (HBCD), and mixed isomers||Hexachlorobuta1,3-diene|
|Hydrazine, Hydrazine compounds and salts||Hydrogen sulfide|
|Jet Fuels, JP-4, JP-5, JP-7 and JP-8||Lead and Lead Compounds|
|Maleic anhydride||Manganese and manganese compounds|
|Mercury and mercury compounds||Methanol|
|Methyl chloride||Methyl isobutyl ketone, Isopropyl acetone; (MIBK)|
|Methyl isocyanate||Methylene diphenyl diisocyanates|
|Methylhydrazine and its salts||Methylnaphthalene; 2-Methylnaphthalene|
|Mineral Oils: Untreated and Mildly Treated||N,N-dimethylformamide; dimethyl formamide|
|n-Hexane||Nickel and Nickel Compounds; Nickel refinery dust from the pyrometallurgical process|
|Nickel oxides||Nickel, metallic and alloys|
|Nitrosamines||Nonylphenol, nonylphenol ethoxylates (NP/NPEs) (and related substances)|
|Perfluorochemicals||Petroleum; Crude oil|
|Phthalic anhydride||Polybrominated diphenyl ethers (PBDEs) congeners|
|Polychlorinated biphenyl (PCB) congeners||Polychlorinated dibenzo-p-dioxins (PCDDs)|
|Polychlorinated dibenzo-p-furans (PCDFs) and Furan Compounds||Polycyclic Aromatic Hydrocarbons (PAHs)|
|Propylene oxide||Quinoline and its strong acid salts|
|Silica, Crystalline (Respirable Size)||Stoddard solvent; Low boiling point naphtha – unspecified;|
|Strong Inorganic Acid Mists Containing Sulfuric Acid||Styrene and derrivatives|
|Sulfur dioxide||Tetrabromobisphenol A (TBBPA)|
|Tetrachloroethylene; Perchloroethylene; (PERC)||Thallium|
|Tris(1,3-dichloro-2-propyl) phosphate (TDCPP)||Tris(2,3-dibromopropyl) phosphate|
|Tris(2-chloroethyl)phosphate (TCEP)||Vanadium pentoxide|
|Vinyl acetate||Vinyl Bromide, Bromoethylene|
|Vinyl chloride; chloroethylene||Xylenes; [o-xylene (95-47-6), m-xylene(108-38-3)and p-xylene (106-42-3)]|
California Green Chemistry Initiative: Does Your Product Contain a "Candidate Chemical” that Could Become a “Chemical of Concern” to the California Department of Toxic Substances Control?
The SCP regulations are the first step in implementing California’s Green Chemistry Initiative. The goal of the SCP regulations is to accelerate the manufacture and use of safer versions of products in California by: (1) establishing a process to identify and prioritize chemical ingredients in consumer products that may be considered “chemicals of concern,” and (2) establishing a process for evaluating chemicals of concern and their potential alternatives, to determine how best to limit exposure to or to reduce the level of hazard posed by chemicals of concern.
The SCP regulations apply to all consumer products that contain a “Candidate Chemical” and are sold, offered for sale, distributed, supplied, or manufactured in California. The regulations do not apply to food, pesticides, dangerous prescription drugs and devices, dental restorative materials or medical devices. There are currently 1,060 “Candidate Chemicals” that DTSC believes have hazard traits or environmental or toxicological effects.
The DTSC has already released its list of “Initial Candidate Chemicals” that will receive DTSC’s priority attention. Toluene, formaldehyde and bisphenol A are among the 164 “Initial Candidate Chemicals” that DTSC will consider to identify the “priority products” that DTSC will address first.
Conkle, Kremer & Engel’s lawyers stay current on the latest developments, and guide the firm’s clients through the thicket of expanding regulatory issues affecting their businesses. Watch for our next post on Green Chemistry, identifying the chemicals that can make your product a candidate to be a “priority product” for the DTSC.