CONSUMER SPECIALTY PRODUCTS ASSOCIATION

California Greening?

It seems everywhere you turn someone is espousing the virtues of “Green Chemistry. But what exactly is Green Chemistry?  And, more importantly, what impacts will the implementation of individual state Green Chemistry programs have on the household product industry and the consumers it serves?

Simply stated, “Green Chemistry is the utilization of a set of principles that reduces or eliminates the use or generation of hazardous substances in the design, manufacture and application of chemical products.” More often it is referred to as sustainable chemistry or chemistry that is benign by design.  The ideals and goals of Green Chemistry go to the core of our member companies’ DNA and allow innovative and out-of-the-box thinking while ensuring the continued efficacy, performance and usability and safety of products that consumers expect.

In the past month, I have participated in several conferences (ACS Green Chemistry Formulators Roundtable, LATAM Surfactants HPC Markets) where the merits and recent advances of Green Chemistry were the topic of discussion.  However, when the discussion turned to California’s interpretation of Green Chemistry, the proposed Safer Consumer Products (SCP) regulation, it was typically met with a collective “What are they thinking?”

California’s idea of Green Chemistry, as outlined in the draft regulation, involves identification of chemicals of concern, followed by identification of Priority Products containing the chemicals of concern, the completion of an alternatives analysis by manufacturer(s) of the selected Priority Products and the imposition of a regulatory response by the state regulatory agency on the manufacturer.  The California Safer Consumer Products regulation has drifted from the basic tenets of sustainability and Green Chemistry.

Stakeholders have identified numerous concerns with provisions of the proposed SCP regulation (as evident by the voluminous comments received on the last informal draft) and it is hard to envision the next round of revisions will sufficiently address these concerns.  For example, significant questions about the intricacies of the Priority Products process and how manufacturers will implement the requirements remain unaddressed and will be critical to both the technical and financial ability of manufacturers to comply with the regulation.   The Priority Products List is a repository of products containing a chemical of concern above an alternatives analysis threshold (de minimus level).

Once placed on said list, any impacted manufacturer, importer or retailer must within 60 days determine and notify the State of California they intend to take one of four courses of action:

a)      Substantiate that the concentration of chemical of concern is below the alternatives analysis threshold in the Priority Product;

b)      Remove the Priority Product from commerce in California;

c)      Remove the chemical of concern from the Priority Product; or

d)     Replace the chemical of concern within the Priority Product via an Alternatives Analysis.

Each of these options is fraught with uncertainty and difficult questions, while the short decision timeframe will likely prevent or make a scientific decision very difficult to attain.  For example, in order to show that the finished product is below the alternatives analysis threshold, should a manufacturer contact the supplier to certify an analysis of the chemical of concern?  Or should the manufacturer devise an analytical method to test for chemical of concern in the finished product?  In addition, the alternatives analysis threshold is arbitrarily set at 0.01% and does not differentiate between intentionally and unintentionally added chemicals nor does it take into consideration potential routes of exposure. Would a retailer that determines they have a Priority Product, which may or may contain the chemical of concern, immediately remove the product from store shelves?

Considering an alternatives analysis is both time-consuming and difficult with an uncertain outcome and it would be inherently difficult for a manufacturer to commit to this decision within 60 days.  Two manufacturers performing an alternatives analysis on the same Priority Product will likely reach equally valid but differing conclusions.  This is the hallmark of innovation and relies upon the technical skills and expertise of the each company, but will California accept both conclusions or will one be forced to accept the other’s result?  In the end, the completed alternatives analysis will be available for public review and comment and it is frighteningly unclear if providing “transparency,” as defined by NGOs, can be accomplished, while ensuring the protection of company confidential business information and trade secrets.

Significant work remains to be done to make this regulatory process science-based, economically and technically feasible, and workable for both California and stakeholders.  The regulation must articulate a simple and flexible performance-based system that is adaptable over time to reflect and take advantage of increasing knowledge to improve products, public health and the environment.

It is no wonder that Green Chemistry continues to remain an important issue.  A famous children’s character once introspectively sang, “It’s not that easy being green.” Just imagine how much more difficult it would’ve been with regulation.

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