California Proposes First “Priority Products” under Safer Consumer Products Regulations

On July 15, 2016, the California Department of Toxic Substances Control (DTSC) announced the release of its proposed regulation on children’s foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate (TDCPP) or tris(2-chloroethyl) phosphate (TCEP) as a Priority Product (PP) under the Safer Consumer Products Regulations (SCPR). DTSC first released information about this PP on March 13, 2014, so this proposed regulation is a major step in the SCPR process and over two years in the making. DTSC will accept comments on the proposal until August 29, 2016. Also on August 29, 2016, DTSC will hold a public hearing at the California Environmental Protection Agency (CalEPA) Building on 1001 “I” Street, Sacramento, California 95814. More information on the SCPR is available on the DTSC website and on the Bergeson & Campbell, P.C. (B&C^®) website.

Proposed PP Regulation

The SCPR defines a PP as a consumer product that contains one or more Candidate Chemicals that have a hazard trait that can harm people and the environment. DTSC states in its PP fact sheet that it selected the three draft PPs based on two criteria in the SCPR: “1) the products have the potential to expose people or the environment to one or more Candidate Chemicals, and 2) this exposure has the potential to ‘contribute to or cause significant or widespread adverse impacts.'” In the proposed regulation, the Initial Statement of Reasons (ISOR), and an accompanying technical report, DTSC sets forth the basis for its determination regarding the potential exposure to TDCPP or TCEP in children’s foam-padded sleeping products, and the potential for these exposures to contribute to or cause significant or widespread adverse human health impacts.

DTSC held public workshops in May and June 2014 to engage stakeholders in a discussion on the draft PPs, and received public comments on this chemical-product combination. Through this process, DTSC modified the chemical-product combination to add the chemical TCEP and to refine the scope of those “children’s foam-padded sleeping products” affected by this proposal. In the proposed regulation, DTSC defines “Children’s foam-padded sleeping products containing TDCPP or TCEP” as assembled products designed for children, toddlers, babies, or infants to nap or sleep on, that include polyurethane foam mats, pads, or pillows containing TDCPP or TCEP which may be covered or upholstered, including:

1. Nap mats. Nap mats are portable foam mats.
    
2. Soft-sided portable cribs. Soft-sided portable cribs are framed enclosures with mesh or fabric side panels, floor, and foam pad.
    
3. Play pens. Play pens are framed enclosures with hard or soft sides, floor, and foam pad.
    
4. Play yards or playards. Play yards or playards are portable framed enclosures with a foam pad bottom that may also have an attached bassinet.
    
5. Infant travel beds. Infant travel beds are lightweight portable sleeping accommodations with a foam pad.
    
6. Portable infant sleepers. Portable infant sleepers are portable accommodations with a foam pad that may be easily assembled and disassembled by folding or collapsing the structure.
    
7. Bassinets. Bassinets are small beds or baskets with a foam pad and raised edges designed primarily for infants.
    
8. Nap cots. Nap cots are narrow, elevated bed stands with a foam pad on top of the cot.
    
9. Infant sleep positioners. Infant sleep positioners are mats with side bolsters or wedges used to elevate an infant’s head or keep an infant in a desired position while sleeping. The mats, side bolsters or wedges may contain foam pads.
    
10. Bedside sleepers. Bedside sleepers are framed enclosures with a foam pad that can attach to an adult-sized bed and are designed primarily for babies.
     
11. Co-Sleepers. Co-sleepers are small foam structures placed in an adult-sized bed, designed to keep a baby from shifting in the bed and to allow a baby and adults to nap or sleep together in the same bed; and
     
12. Baby or toddler foam pillows. Baby or toddler foam pillows are foam pillows designed primarily for babies or toddlers.

Excluded from the PP listing are:

1. Mattresses as defined and covered by the requirements of [Consumer Product Safety Commission (CPSC)] 1632/1633 or products containing mattresses;
    
2. Furniture covered by the requirements of California Technical Bulletin 117-2013; and
    
3. Add-on child restraint systems for use in motor vehicles and aircraft that are required to meet federal flammability standards.

DTSC states in the ISOR that “[a]chieving a very clear definition of the Priority Product will improve compliance with this regulation.”

Although companies had argued that children’s foam-padded sleeping products containing TDCPP/TCEP should be exempt from the SCPR because they are already regulated, DTSC found that this proposed regulation does not duplicate or conflict with existing federal regulations. To demonstrate that a consumer product is exempt from the SCPR, it must be shown that the law or program: (1) addresses the same potential adverse impacts, potential exposure pathways, and potential adverse waste and end-of-life effects that could otherwise be the basis for the product being listed as a PP; and (2) provides a level of public health and environmental protection that is equivalent to or greater than the protection that would potentially be provided if the product were listed as a PP. DTSC found, however, that the CPSC’s regulations regarding flame retardant standards for sleeping products did not regulate children’s sleeping products and, thus, the PP “was narrowed to focus on children’s sleeping products because there are no regulatory requirements to include flame retardants in these products,” as stated in the ISOR. DTSC does exempt child restraint systems for use in motor vehicles and aircraft (e.g., car seats) from the definition of children’s foam-padded sleeping products based on existing Federal Motor Vehicle Safety Standards that specify flame retardant requirements for interior materials of motor vehicles including child restraint systems.

Commentary

Unless a company ceases to manufacture the PP prior to the date the product is included in the final PP list, the due date for submission of the Preliminary Alternatives Analysis (AA) Report will be 180 days after the effective date of this regulation. DTSC estimates that manufacturers who may be affected by this proposed regulation could collectively spend $1,750 to $40,000 to comply with the notification and reporting requirements, but those costs could be lower depending on the number of manufacturers that may be exempt from notification and reporting requirements. These costs may significantly underestimate the time and costs necessary to conduct and prepare an AA report, particularly if manufacturers do not join as some type of consortia. Potential costs and challenges to determine a suitable substitute chemical for TDCPP or TCEP may be avoided if, as DTSC “anticipates,” manufacturers switch to flame retardant-free foam since, as stated in the ISOR, “they are not required to meet flame retardant standards for these products and they can continue to use their current manufacturing processes.”

Although DTSC does not discuss any timetable, DTSC also states it is continuing to pursue separate rulemaking proposals for the other two other product-chemical combinations that were previously released in draft: spray polyurethane foam (SPF) systems containing methylene diphenyl diisocyanates, and paint and varnish strippers containing methylene chloride.