Phil Moffat Will Participate on ABA Panel Concerning California's Green Chemistry Regulations

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Green Chemistry Regulations:

Verdant is pleased to announce that Philip Moffat will participate on a “quick teleconference” program sponsored by the American Bar Association (ABA) Section of Environment, Energy, and Resources, titled “California Dreaming, Reality, or Nightmare?  California’s New Paradigm in Chemicals and Products Regulation Is Coming to a Store Near You.”  The December 13, 2011, teleconference will discuss the substantially revised regulations recently proposed by the California Department of Toxic Substances Control (DTSC) to implement AB 1879, a new California Green Chemistry Initiative law designed to “accelerate the quest for safer products” in the state.  In addition to discussing the law’s requirements and its implementation, the teleconference will provide both industry and public health perspectives. 

Other speakers include:

  • Philip Crowley, Assistant General Counsel, Johnson & Johnson, New Brunswick, NJ
  • Dr. Joseph Guth, UC Berkeley Center for Green Chemistry; and the Science and Environmental Health Network, Berkeley, CA
  • Dr. Jeff Wong, Chief Scientist, DTSC, Sacramento, CA
  • Ann Grimaldi, McKenna Long & Aldridge LLP, San Francisco, CA

There are two ways to participate in this program, either attending a host site location or individual dial-in.  Participation at a host site location is free of charge for ABA members, and $110 for non-members.  Registration with the host site contact is required, however.  The host sites are:

  • San Francisco, CA
    McKenna Long & Aldridge LLP, 101 California St., # 41
    RSVP: Cynthia Kelly, (415) 267-4051 or ckelly@mckennalong.com
  • Washington, DC
    McKenna Long & Aldridge LLP, 1900 K Street, NW
    RSVP: Debbie Leitner, (202) 496-7372, dleitner@mckennalong.com

The teleconference will begin promptly at 1:00 pm EasternTime, Tuesday, December 13, 2011, and last for 105 minutes.

  • 1:00 p.m. – 2:45 p.m. Eastern Time / 12:00 p.m. – 1:45 p.m. Central Time
  • 11:00 a.m. – 12:45 p.m. Mountain Time / 10:00 a.m. – 11:45 a.m. Pacific Time

Additional information about the teleconference is available here.

Reminder: Upcoming Meeting of California's Green Ribbon Science Panel

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Green Chemistry Regulations:

California’s Green Ribbon Science Panel (GRSP), the expert body established to advise the Department of Toxic Substances Control (DTSC) on green chemistry and the regulation of consumer products, will convene in Sacramento on November 14 (all day) and 15 (morning only) to discuss the latest informal draft of the so-called Safer Consumer Product Alternatives (SCPA) Regulations.  No agenda or other meeting materials have been publicly released at this time, but a copy of the informal draft regulations and related information is available here.

California Releases Informal Draft of the Revised Green Chemistry Regulations

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Green Chemistry Regulations:

On Monday, October 31, 2011, the California Department of Toxic Substances Control (DTSC) released an informal draft of its revised green chemistry regulations, the so-called “Safer Consumer Product Alternatives (SCPA) Regulations.”  DTSC spent the last year further revising the regulations after some stakeholders decried the proposed final version released for public comment over the Thanksgiving holiday in 2010.  Public comments on the lastest informal draft are due by December 30, 2011.  The formal rulemaking process will begin in 2012.

On Monday DTSC also released a document setting out the most significant changes from the November 2010 version of the regulations. (For purposes of comparison, a summary of the November 2010 version is available here.)  It is clear that DTSC is envisioning a more robust program with shorter timelines and fewer exemptions, ultimately requiring more agency and private resources to implement without a clear benefit from doing so. In light of the poor state of California’s economy, and the relative weakness of the U.S. economy as a whole, one has to wonder why DTSC has chosen its proposed path. According to DTSC, the following are the most significant changes found in the current informal draft. 

Timeframes

(1) Many timeframes have been shortened and/or made more specific.

(2) Timing of initial Chemicals of Concern (COC) list — effective date of the regulations.

(3) Timing of initial Priority Products list — 6 months for the proposed list.

(4) Both the chemicals and products lists will be reviewed at least once every 3 years.

Chemical / Product Prioritization

(1) The regulations will establish an immediate robust (~3,000) list of COCs (which DTSC can add onto later), based on work already done by numerous authoritative bodies.

 (2) The list of hazard traits has been expanded to include all hazard traits and environmental and toxicological endpoints specified by OEHHA. Additionally, the universe of chemicals considered to be carcinogens and reproductive toxins is no longer limited to only those chemicals listed on a short list of lists.

(3) The regulations no longer limit the product categories that DTSC can consider when listing Priority Products during the first 5 years.

(4) Worker exposure has been added as a prioritization factor.

(5) The requirement for responsible entities to provide chemical and product information during the prioritization process has been eliminated. (DTSC will request this information and list anyone who does not provide the information on a Failure to Respond list.)

Alternatives Assessments

(1) The regulations expand the primary responsibility for compliance beyond the product producer to also include: (i) the person who controls the product design; and (ii) the U.S. importer.

(2) The alternatives assessment (AA) process is more specific and structured, but allows for flexibility.

(3) There is no requirement to fill information gaps during the AA — instead DTSC has the option to require this as a regulatory response.

(4) The third-party verification requirement for AAs has been eliminated — instead AAs are required to be conducted by a certified assessor. Also, DTSC will play a greater role in auditing AAs.

Exemptions

(1) The default de minimis level is 0.01% for chemicals with one of 9 specified hazard traits, and 0.1% for all other chemicals — DTSC can set a lower or higher de minimis level.

(2) The exemption for unintentionally-added chemicals has been eliminated. However, these chemicals are a consideration for setting a higher de minimis level.

(3) The “no exposure pathway” exemption has been eliminated. However, exposure potential will still be considered during the chemical/product prioritization process.

Readers wanting more information should check back for future posts on this development, as well as visit the DTSC website. In addition, there will be a public workshop on the draft proposal on December 5, 2011 from 9:30 am to 3:30 pm in Sacramento. The Green Ribbon Science Panel also will dicuss the proposal at the Panel’s meeting on November 14 – 15, also in Sacramento.        

Phil Moffat Will Speak About Green Marketing at the 2011 ASC Fall Conference and Expo

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Green Marketing:

Verdant is pleased to announce that Philip Moffat will speak at the 2011 ASC Fall Conference and Expo in Indianapolis, Indiana on October 16 – 18.  Phil will discuss marketing and enforcement trends, the tools available to regulate green marketing in the U.S. and elsewhere, and the legal risks attending the marketing of “sustainable” packaging or other “green” products for which universally accepted metrics and definitions are lacking.  

More information about the Fall Conference and Expo is available here.  A copy of the presentation is available here.

EPA Launches Green Products Web Portal for Pollution Prevention Week

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Sustainable Products/Green Marketing:

This week is Pollution Prevention Week.  And to help celebrate the Week, EPA has announced the launch of a new portal to help consumers find so-called “Greener Products.”   The tool is intended to provide consumers information about everyday products, enabling them to identify those that require less energy or water, or use safer chemicals.  The Agency’s announcement is embedded below.  The portal is accessible here.

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WASHINGTON — The U.S. Environmental Protection Agency (EPA) is observing Pollution Prevention (P2) Week (September 19-25, 2011) by launching a new tool designed to provide Americans easy access to information about everyday products like home appliances, electronics and cleaning products that can save money, prevent pollution and protect people’s health. The new green products web portal is available at www.epa.gov/greenerproducts

This week serves to recognize significant pollution prevention work around the country and help  consumers get involved in pollution prevention. EPA’s new green products web portal is an easy way for all Americans to learn about products that prevent pollution and protect our environment.

Using the new tool, consumers can find electronics and appliances that have earned EPA’s Energy Star label and can browse WaterSense products that help save energy and water. Additionally, consumers can find information about cleaning products that are safer for the environment and people’s health. These products bear the EPA Design for the Environment (DfE) label. The website will also help manufacturers and institutional purchasers with information on  standards and criteria for designing  greener products.

“By purchasing greener products, consumers can help reduce air pollution, conserve water and energy, minimize waste and protect their children and families from exposure to toxic chemicals, while also creating green jobs,” said Steve Owens, assistant administrator of EPA’s Office of Chemical Safety and Pollution Prevention, “Pollution Prevention is good for our health, our environment and our economy.”

Join the EPA in marking P2 Week this week, and help prevent pollution every day. More information on pollution prevention, P2 Week, and EPA’s P2 programs: http://epa.gov/p2/

Philip Moffat Will Speak About Sustainable Packaging at the 2011 ASC Sustainability Summit

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Sustainable Products/Green Marketing:

Verdant is pleased to announce that Philip Moffat will speak at the 2011 ASC Sustainability Summit in Rosemont, Illinois (O’Hare) on July 26 – 27.  Mr.  Moffat will discuss green marketing and enforcement trends, the tools available to regulate green marketing in the U.S. and elsewhere, and the legal risks attending the marketing of “sustainable” packaging in the absence of universally accepted metrics and definitions.

The Adhesive and Sealant Council (ASC) and ASTM International (formerly known as the American Society of Testing and Materials) are co-sponsoring the event.  Representatives from well-known organizations such as Dow Corning, John Deere, HP Fuller, the America Chemical Society’s Green Chemistry Initiative, USEPA, and many others will be presenting on timely topics ranging from Green Chemistry to Green Marketing.  A copy of the preliminary agenda is set out below.  The conference brochure is available here.


Tuesday, July 26

Keynote Speaker………………………………………………………………….8:00 – 8:45 am
Dr. Bob Peoples, ACS

Adhesive Panel Discussion (focused on transportation)…………….8:45 – 10:15 am
Moderator: Sandra Niks, ASTM

Sealant Panel Discussion (focused on building construction)…….10:30 am – Noon
Moderator: Ken Yarosh, Dow Corning

Lunch Keynote Speaker……………………………………………………….Noon – 1:00 pm
FEICA – The EU’s perspective on sustainability
in the adhesive and sealant space

Adhesive Panel Discussion (focused on packaging)……………………1:15 – 2:45 pm
Moderator: John Kalkowski, Packaging Digest Magazine

Break Out Session – Adhesives………………………………………………3:30 – 4:30 pm

Break Out Session – Sealants…………………………………………………3:30 – 4:30 pm

Tour of a LEED Silver Building………………………………………………..4:30 – 5:45 pm

Reception…………………………………………………………………………..6:00 – 7:00 pm

Wednesday, July 27

Adhesives Group Key Findings……………………………………………….8:00 – 8:45 am
Presented by Adhesives Group Leader

Sealants Group Key Findings………………………………………………….8:45 – 9:30 am
Presented by Sealants Group Leader

ASTM Future Initiatives & Roadmap………………………………………9:45 – 10:00 am

ASC Future Educational Initiatives ………………………………………10:00 – 10:15 am

Closing Keynote Session……………………………………………………10:30 – 11:30 am
Rik Master, USG Corp.

Health Canada Publishes FAQs on Canada Consumer Product Safety Act

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Consumer Products:

On May 17, 2011, Health Canada published a Frequently Asked Questions (FAQ) document concerning the Canada Consumer Product Safety Act (CCPSA).  The CCPSA enters into force on June 20, 2011, and many questions remain unanswered.  Industry and other stakeholders have been waiting for more detailed instructions from the agency.  A copy of the CCPSA is available here, and the FAQ is available here.

A broad range of products and associated packaging are covered by the CCPSA.  Under the Act, a “consumer product” is defined as a product, including its components, parts or accessories that may reasonably be expected to be obtained by an individual to be used for non-commercial purposes, including for domestic, recreational and sports purposes, and includes its packaging. Section 4 of the Act outlines the consumer products to which the CCPSA does not apply, including those listed in Schedule I. These include products that are covered under other legislation such as food, cosmetics, medical devices, drugs, natural health products, pest control products, fertilizers and vehicles.

The FAQ includes a fairly comprehensive set of questions.  The following examples are provided for the reader’s convenience:

Q. Does my product fall under the Canada Consumer Product Safety Act (CCPSA)?

Q. Is Health Canada considering adding certain products to the list of products to which the Canada Consumer Product Safety Act (CCPSA) does not apply?

Q. The definition of “consumer product” contains terms such as “obtained” and “non-commercial purposes” which are not defined in the Act. Is Health Canada going to provide definitions or guidance on these terms?

Q. Will there be a transition period for the implementation of the Canada Consumer Product Safety Act (CCPSA) and regulations, and if so, how long will it be?

Q. What does it mean in practice for the Minister to have the authority to order a recall?

Q. What is Mandatory Reporting?

Q. How do I determine what is considered as a reportable incident?

Q. Will the Canada Consumer Product Safety Act (CCPSA) Mandatory Reporting requirements be retroactive? For example, at the time that the Act comes into force on June 20th, 2011, will manufacturers, importers and retailers be required to report incidents that happened prior to that date?

Q. If a product falls under the purview of both the Canada Consumer Product Safety Act (CCPSA) and another statute, such as a provincial one, will Health Canada be the primary reporting body that will distribute the incident report information to the other regulatory body?

Q. Does a recall undertaken in another country need to be reported in Canada as well?

Q. Is Health Canada planning to require traceability of components of consumer products?

Q. When can we expect to see new regulations under the Canada Consumer Product Safety Act (CCPSA)?

Q. When will the regulations for Administrative Monetary Penalties be developed?

Q. Will certain organizations be exempt from the Canada Consumer Product Safety Act (CCPSA)?

Q. What safeguards are in place to protect Confidential Business Information submitted to Health Canada?

Readers interested in consumer product safety should continue to follow Canada’s implementation of this important new law.

Design for the Environment–EPA’s Safer Product Labeling Program

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Green Chemistry/Design for the Environment:

Readers interested in EPA’s Safer Product Labeling Program may want to look through the list of products now authorized to carry EPA’s Design for the Environment (DfE) label.  The list is available here.

On April 20, in anticipation of Earth Day, EPA announced that 2,500 products are now approved to carry the DfE label, including all-purpose cleaners, laundry and dishwasher detergents, drain line maintainers, and car and boat care products. DfE-labeled products do not contain known chemicals of potential concern, like carcinogens, reproductive or developmental toxicants. Even minor product components, like dyes and fragrances, are screened for safety.  In fact, according to EPA, before allowing the DfE logo to be used on a product label, the Agency conducts a scientific evaluation to ensure that candidate products are formulated from the safest possible ingredients.  The Agency’s press release explains that “[t]he DfE label means that EPA has screened each ingredient for potential human health and environmental effects and that the product contains only ingredients that, in EPA’s scientific opinion, pose the least concern among chemicals in their class.”

EPA also announced that DfE labeled products will soon be required to disclose their ingredients (other than trade secrets) to consumers. In addition, new DfE-approved products will need to meet additional life-cycle requirements such as sustainable packaging and limits on volatile organic compounds.  The new disclosure and life-cycle requirements will be phased in for existing DfE products, but some companies are already moving to comply with those standards.

Instructions on the application process for DfE labeling are available here.

Click here for the DfE home page.

Leading Consumer Products Companies Explain How and Why They Share Chemical Data Along the Supply Chain

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Green Chemistry/Sustainable Supply Chain Management:

The Green Chemistry and Commerce Council (GC3) recently published a report titled, Meeting Customers’ Needs for Chemical Data: A Guidance Document for Suppliers.  The Guidance Document is designed to improve supply chain communication between suppliers and their customers concerning chemical identities and health and safety data.  In the report, leading companies such as HP, Johnson & Johnson, Method, Nike, SC Johnson, and Wal-Mart explain why they want such data and how they interact with their suppliers to obtain it. 

Readers unfamiliar with GC3 should know that it is a business-to-business forum for members to discuss and share information and experiences relating to the advancement of green chemistry, design for the environment, and sustainable supply chain management.  GC3, which began in 2005, is a project of Lowell Center for Sustainable Production at the University of Massachusetts Lowell.  GC3 prepared the Guidance Document with two goals in mind: “(1) to advance the efforts of companies trying to obtain the chemical data needed for regulatory and corporate sustainability programs and in response to market demands, and (2) to advance the efforts of suppliers to provide chemical data needed by their customers.”

The Guidance Document is a response to the growing demand for increased transparency concerning chemical-related data. Companies attempting to bring “green” or “safer” products to the market need chemical identity and health and safety data at the product design phase.  Access to this information enables them to evaluate and manage market, regulatory, and tort liability risks, as well as respond to requests from their customers, including consumers, wanting more information.

The Guidance Document should prove helpful to suppliers less familiar with the trend toward greater transparency, the rationale supporting it, and the techniques used to sustain it.  The document explains why fabricators and formulators are requesting chemical data, what chemical data are being sought, how suppliers can benefit from sharing data, why Material Safety Data Sheets (MSDS) often provide inadequate data, how companies are handling confidential business information, how fabricators and formulators collect data from their suppliers and what they are doing with the data, and where suppliers can obtain the data being requested.  In addition to describing the chemical data collection practices of different companies, the Guidance Document also provides customizable letters and forms that companies can use to facilitate their communications. 

More information about GC3 is available here.

USDA Launches BioPreferred Product Certification and Labeling Program

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Sustainable Products:

On January 20, 2010, the US Department of Agriculture (USDA) published a final rule announcing its BioPreferred Program, a voluntary product certification and labeling program established under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 8102.  According to the USDA press release, “this new label will clearly identify biobased products made from renewable resources, and will promote the increased sale and use of these products in the commercial market and for consumers.” The rule is effective February 22, 2011.

Under the program, a biobased product, after being certified by USDA, can be marketed using the “USDA Certified Biobased Product’’ label.  Biobased products are those composed wholly or significantly of biological ingredients – renewable plant, animal, marine or forestry materials. The presence of the label will mean that the product meets USDA standards for the amount of biobased content and that the manufacturer or vendor has provided relevant information on the product for the USDA BioPreferred Program web site. The rule applies to manufacturers and vendors who wish to participate in the voluntary labeling component of the BioPreferred Program.  It also applies to other entities, such as trade associations, that want to use the label to promote biobased products. 

With the launch of the USDA biobased product label, the BioPreferred program is now comprised of two parts: a biobased product procurement preference program for Federal agencies, established in 2005, and a voluntary labeling initiative for the broad-scale marketing of biobased products.  According to the USDA’s website, the Agency has already designated approximately 5,100 biobased products for preferred purchasing by Federal agencies. The new label will make identification of these products easier for Federal buyers, and will increase awareness of these high-value products in other markets. USDA estimates that there are 20,000 biobased products currently being manufactured in the United States and that the growing industry as a whole is responsible for over 100,000 jobs.

Lastly, readers will recall that the Federal Trade Commission (FTC) recently proposed revisions to its guidance concerning compliance with section 5 of the FTC Act when making environmental marketing claims – the so-called “Green Guides.”  In that proposal, the FTC elected to defer to the USDA’s BioPreferred labeling program for guidance on marketing products covered by the program.  So, companies making “biobased” marketing claims in compliance with the USDA’s requirements presumably would have a limited safe-harbor from FTC enforcement.  However,  the FTC has reminded marketers that its proposal contains guidance concerning “made with renewable materials” claims, which can be similar to “biobased” claims, so marketers would need to remain mindful of that guidance when making such claims.