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1 Pesticides, Chemical Regulation, and Right-to-Know Committee, November 2013

November 2013Vol. 15, No. 1

Pesticides, Chemical Regulation, andRight-to-Know Committee Newsletter

FROM THE CHAIRMartha Marrapese

Green chemistry is a hot topic in the 2013–2014Pesticide, Chemical Regulation, and Right-to-Know(PCRRTK) Committee Action Plan. According to theU.S. Environmental Protection Agency (EPA) (http://www2.epa.gov/green-chemistry), green chemistry is“the design of chemical products and processes thatreduce or eliminate the use or generation ofhazardous substances.” The momentum that greenchemistry has taken on is so notable that we aretaking the unusual step of devoting a special issue ofthe PCRRTK Newsletter to this exciting andgroundbreaking topic. Read on for exploration andcoverage of such topics as the Federal TradeCommission’s (FTC) enforcement of the GreenGuides, EPA’s Design for the Environment program,Toxic Substances Control Act (TSCA) Reform, andthe Green Chemistry Movement, and the role ofpublic disclosure policies in the selection of greenerchemistries.

This timely special issue provides you with theessential knowledge you should have aboutCalifornia’s Safer Consumer Products Regulations(SCPR). This rule took effect on October 1, andheralds a new era of chemical regulation at the statelevel. The SCPR is designed “to reduce toxicchemicals in consumer products, create newbusiness opportunities in the emerging saferconsumer products economy, and reduce the burdenon consumers and businesses struggling to identifywhat’s in the products they buy for their families andcustomers.”

These initiatives highlight a significant direction inenvironmental law and policy that is dedicated tospeeding the adoption of green chemistry byindustry and academia. It is “Earth Day meets theMasters,” and California is presenting MotherNature with the “green jacket.” Granted, the use oftechnology-forcing initiatives to spur innovation inpollution control to better protect public health andthe environment is not new. The greater novelty isthat these initiatives are promoting efficiency andcompetitiveness as their by-product. Can we reallyhave it all? There are those that think so. On EPA’swebpage, the agency prominently refers visitors toa 2011 Pike Research report concluding that greenchemicals will save industry $65.5 billion by 2020(http://www.navigantresearch.com/research/green-chemistry).

As we begin a new ABA Section of Environment,Energy, and Resources year, I would like tointroduce our 2013–2014 team of PCRRTK vicechairs:

Committee Newsletter• Lynn L. Bergeson, Bergeson & Campbell, P.C.

Electronic Communications• Freedom Smith, Ice Miller LLP

Membership• Firm and Regional Membership: Lori Warner,Jackson Gilmour & Dobbs, PC• Public Sector Participation: Pat Sims, U.S.Environmental Protection Agency

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Pesticides, Chemical Regulation, andRight-to-Know Committee NewsletterVol. 15, No. 1, November 2013Lynn L. Bergeson, Editor

In this issue:

From the ChairMartha Marrapese ................................... 1

FTC Continues Enforcement on “VOC-Free”ClaimsEmilee Mooney Scott ................................ 4

TSCA Reform and the Green ChemistryMovementLawrence E. Culleen andPeggy Otum ............................................... 6

DTSC Releases Final Safer ConsumerProducts RegulationsLisa R. Burchi ............................................... 8

EPA’s Design for the Environment Program:Poised for an Expanded Role in GreenChemistry of the Future?Shailesh R. Sahay ...................................... 14

Helping Safer Chemicals Overcome Barriersto EntryBaskut Tuncak .......................................... 16

Our Home State Puts the Spotlight onChemicals and ExposureEric Lindstrom ............................................ 18

From Greenwash to Greenmail: Policing theGreen Commerce MovementCharles L. Franklin ..................................... 20

Green Chemistry Has Arrived . . . AlternativeAnalyses Should Be RespectfullyApproachedEric P. Gotting andMartha E. Marrapese ............................. 23

Alternatives Assessments for Chemicals ofConcern: In Search of a Uniform StandardWarren U. Lehrenbaum andJoshua M. Kaplowitz ................................... 24

Copyright © 2013. American Bar Association. Allrights reserved. No part of this publication may bereproduced, stored in a retrieval system, ortransmitted in any form or by any means, electronic,mechanical, photocopying, recording, or otherwise,without the prior written permission of the publisher.Send requests to Manager, Copyrights andLicensing, at the ABA, by way ofwww.americanbar.org/reprint.

Any opinions expressed are those of the contributorsand shall not be construed to represent the policiesof the American Bar Association or the Section ofEnvironment, Energy, and Resources.

January 24-26, 2014Winter CouncilThe SanctuaryScottsdale, AZ

March 20-22, 201443rd Spring ConferenceThe Grand America HotelSalt Lake City, UT

April 10-11, 2014ABA Petroleum Marketing Attorneys’MeetingThe Ritz-Carlton HotelWashington, DC

June 4-6, 201432nd Annual Water Law ConferenceThe Red Rock Resort, Casino and SpaLas Vegas, NV

CALENDAR OF SECTION EVENTS

AMERICAN BAR ASSOCIATION

SECTION OF ENVIRONMENT,ENERGY, AND RESOURCES

For full details, please visit www.ambar.org/EnvironCalendar


2013- 2014ABA Section of Environment,Energy, and Resources

MembershipDiversityEnhancementProgram

The Membership Diversity EnhancementProgram (MDEP) isdesigned for lawyers who have been under-represented in our Section membership. Theprogram’s goal is to have its programs,publications, and other activities reflect thediverse perspectives and interests of alllawyers who practice in the environmental,energy, and natural resource law areas.

Successful applicants will have opportunitiesto actively participate in the Sectioncommittees of their choice, publish incommittee newsletters, engage in publicservice projects, and assist in Sectionprogram planning.

The MDEP program is open to minoritylawyers, women lawyers, lawyers withdisabilities, and differing sexual orientationand gender identification that are:

• Young lawyers (lawyers admitted topractice for less than five years orwho are under 36 years old),

• Government lawyers,• Public interest lawyers,• Academics, or• Solo practitioners

See our website for full details andrestrictions.

• Student and Young Lawyer Membership: ShaiSahay, Arnold & Porter, LLP• In-House Membership: Karyn Schmidt,American Chemistry Council• Nongovernmental Organization (NGO)Membership: Baskut Tuncak, Center forInternational Environmental Law

Programs• Larry Culleen, Arnold & Porter, LLP• Irene Hantman, Verdent Law PLLC

Social Media• Kirk Tracy, Washington, DC

Special Projects Vice Chair• Joanne Thelmo, American Cleaning Institute

The Year in Review• Claudia O’Brien, Latham & Watkins LLP• Alicia Edwards, GableGotwals

At-Large Vice Chairs• Mark Duvall, Beveridge & Diamond, PC• Charles Franklin, Akin Gump Strauss Hauer &Feld LLP• Herb Estreicher, Keller and Heckman LLP• Brandon Barnes, McDermott, Will & Emery• Warren Lehrenbaum, Crowell & Moring LLP

We kicked off our TSCA modernization briefingpaper project in October, with project groupsdeveloping legal analyses on confidential businessinformation, private rights of action, statechemical regulation, standard of review for riskassessments, and a TSCA 101 backgrounder.

Finally, our monthly teleconferences will resumethe last week of each month on Mondays at 11:00a.m. Eastern. You should have received an outlookinvite for these calls on your calendar, as we sendthe invite out to the entire PCRRTK list serve.

Martha E. Marrapese is a partner with Kellerand Heckman LLP in Washington, D.C.

continued from page 1

Application deadline:January 6, 2014

www.ambar.org/EnvironMDEP


FTC CONTINUES ENFORCEMENT ON “VOC-FREE” CLAIMSEmilee Mooney Scott

A growing market exists for products with levels ofvolatile organic compounds (VOC) below mandatedthresholds, as a stroll through any homeimprovement store will reveal. In particular, themarkets for low-VOC and VOC-free furnishings,building materials, and architectural coatings aregrowing due to a focus on green building andconcerns over indoor air quality. As consumersincreasingly demand products low in (or even freeof) VOCs and other substances thought to beharmful, producers will continue to focus on suchattributes in their marketing. In the year since theFederal Trade Commission (FTC) released revisedguidelines on environmental marketing statements,enforcement activity in this area has focused on suchVOC-free claims.

FTC’s Green Guides

FTC is charged with protecting consumers fromdeceptive marketing and other trade practices,including claims related to environmental attributes.The Guides for the Use of EnvironmentalMarketing Claims (the Green Guides) provideguidance on the types of environmental marketingclaims that FTC will consider deceptive. While theGreen Guides themselves are not directlyenforceable, they illustrate the marketing practicesthat FTC considers deceptive under the FederalTrade Commission Act. Entities engaging in suchdeceptive conduct may face injunctions andmonetary penalties.

In October 2012, FTC released a major revision ofthe Green Guides that had last been revised in 1998.The revised Green Guides added or refinedguidance on a number of green marketing practices,including claims that products are free of aparticular substance thought to be harmful (called“free-of” claims in the Green Guides).

It is considered deceptive to “misrepresent, directlyor by implication” that a product is free of asubstance of concern like formaldehyde or chlorine.Even if the product is actually free of the substance,it is deceptive to highlight that fact if it uses analternative substance with similar environmentalimpacts. For example, it is considered deceptive totout the use of a non-chlorine bleaching agent whenit causes the same harms as chlorine bleach.

On the other hand, FTC allows products to bemarketed as “free of” a substance even if a “traceamount” of the substance is present if the followingconditions are met:

• The level of the specified substance is nomore than that which would be found as anacknowledged trace contaminant or atbackground levels;

• The substance’s presence does not causematerial harm that consumers typicallyassociate with that substance; and

• The substance has not been addedintentionally to the product.

FTC notes that the terms “trace contaminant” and“background level” are imprecise, subject to a case-by-case analysis depending upon the substance atissue. FTC further emphasizes that application of thetest should vary depending on the circumstances byusing the words “depending on the context” tointroduce the test.

“Green” Paint

In settlements proposed last November and issuedin final in March 2013, FTC applied itsinterpretation of the expanded “free-of” guidancefor the first time. Both matters concerned themarketing of paint as VOC-free. PPG ArchitecturalFinishes, Inc. (PPG, the maker of Pittsburgh Paints)called its Pure Performance paint “‘green’ in anycolor” and free of VOCs. The Sherwin-WilliamsCompany prominently featured children in marketingfor its Dutch Boy Refresh paint, saying that “littlenoses won’t be bothered” by its zero VOCformulation. Both companies used plain white base

www.ambar.org/EnvironSocialMedia

Pesticides, Chemical Regulation, and Right-to-Know Committee, February 2013 5

paints that were indeed VOC-free. Once the basepaint had been tinted to a Bird Song Blue or anEclectic Plum, however, the finished paint containedVOCs.

In both instances, FTC alleged that the VOC-freeclaims were false or misleading, and that thecompanies had provided distributors with the meansand instrumentalities to disseminate the misleadingclaims. While the Dutch Boy paint cans and otherpromotional materials contained an inconspicuousstatement that “[s]ome colors may not be Zero VOCafter tinting with conventional colorants,” FTCnonetheless concluded that “any reasonableconsumer . . . would likely be deceived” about thepaint’s true VOC content.

While no monetary penalties were included in theconsent orders, FTC directed both companies todiscontinue the deceptive marketing. Both consentorders provide that unqualified VOC-freerepresentations are only permissible if the final,tinted paint is actually VOC-free or contains only a“trace level” of VOCs, with “trace level” definedthrough a tailored test discussed below. Otherwise,the VOC-free representation must be joined by adisclosure that the paint’s VOC level may increasewith the color choice. If the VOC content in thetinted paint reaches or exceeds a specified level, thedisclosure must state that the VOC level mayincrease “significantly” or “up to [the highestpossible VOC level after tinting],” depending on thecolor choice. The consent orders also provide thatany representations concerning VOC levels or otherenvironmental attributes must be backed up by“competent and reliable scientific evidence thatsubstantiates the representation.”

Memory Foam Mattresses

In July, FTC continued its enforcement efforts on“free-of” claims by announcing proposedsettlements with three mattress companies: Relief-Mart, Inc. (Relief-Mart), Essentia Natural MemoryFoam Company, Inc. (Essentia), and EcobabyOrganics, Inc. (Ecobaby). All three mattresscompanies prominently featured claims ofenvironmental and health benefits in their marketing

materials, with a focus on the asserted absence ofVOCs. Ecobaby touted its product as “free ofchemicals . . . providing you with a clean, non-toxic,and restful sleep.” Essentia asserted that competitormattresses “can emit up to 61 chemicals” and that itsproduct was “free from all those harmful VOCs.”

All three of FTC’s draft complaints against themattress companies allege that the VOC-free claimswere unsupported. FTC also took issue withEssentia’s odor-free claims, stating that reasonableconsumers are likely to “interpret representationsthat a mattress has ‘[n]o chemical off-gassing orodor’ or that a mattress ‘does not emit chemicalfumes or odors’ to mean that the mattress is free ofVOCs.” As with the paint settlements, the proposedmattress settlements provide that unqualified VOC-free representations are only permissible if theproduct is actually VOC-free or contains only a“trace level” of VOCs. Further, any claims as toVOC content, or any other health or environmentalbenefit, must be supported by “competent andreliable scientific evidence” that substantiates theclaim.

The Ecobaby settlement raises a Green Guidesissue not raised by the paint settlements—claimsrelated to third-party certifications. Ecobaby hadrepresented that its mattresses were certified by theNational Association of Organic Mattress Industry(NAOMI). It turned out that NAOMI was not anindependent certifying body, but was fullycontrolled by Ecobaby. FTC flagged this practice asdeceptive, and ordered it to stop. Ironically,Ecobaby’s marketing materials reveal a strategy ofcasting doubt on the Certified Organic and GreenGuard labels and stating that its products were morepure (“[b]eware of so called certifications”).

Public comment was accepted on the proposedsettlements until late August, and the final versionsare not yet available.

Application of Trace Amount Test

In the Green Guides, FTC stated that it intends forits three-part trace amount test to be tailored to the


specific product in question. FTC’s tailoring of thetest to the VOC-free paint and mattress claimsshows FTC’s focus on consumer expectations. First,FTC omitted the “acknowledged trace contaminant”concept from the first prong of the test, so that onlybackground levels of VOCs are permissible inpaints or mattresses marketed as VOC-free. This isin line with consumer concerns about ambient airquality and expectations that the use of a “zeroVOC” paint or mattress would not raise the VOClevels in the air that they are breathing. Where thesubstance in question is not normally present atbackground levels in the environment (as VOCsare), we might instead expect an analysis of thesubstance as a “trace contaminant.”

Further, in the “material harm” prong, FTCspecifically referenced harms “including but notlimited to, harm to the environment or humanhealth.” As FTC noted in an enforcement statementfollowing the paint orders, “consumers find both theenvironmental and health effects of VOCs materialin evaluating VOC-free claims for architecturalcoatings.” For products that raise onlyenvironmental concerns, or perhaps additionalconcerns, we may expect to see the concept of“material harm” modified accordingly.

Emilee Mooney Scott is a member of theEnvironmental and Utilities Practice Group ofRobinson & Cole, LLP.

TSCA REFORM AND THE GREEN CHEMISTRYMOVEMENTLawrence E. Culleen and Peggy Otum

Enthusiasm for reform of the Toxic SubstancesControl Act (TSCA) has been reinvigorated in boththe Senate and House as well as within the businessand nongovernmental organization (NGO)communities, brought about in large measure by therecent introduction of the Lautenberg-VitterChemical Safety Improvement Act (CSIA, S. 1001)in the U.S. Senate. That bill surprisingly emergedmere weeks after Senator Lautenberg hadreintroduced a more partisan TSCA reform billcalled the Safe Chemicals Act (SCA, S. 696). (S.696 is essentially the same legislation introduced bySenator Lautenberg as the Safe Chemicals Act of2011 (S. 847).) If TSCA reform is to be realized anytime soon, it is possible it would be throughmovement to the Senate floor of an amended versionof one of these two bills. If so, how likely is it thatthe amended legislation will reflect the aspirationsof the Green Chemistry Movement?

What Is Green Chemistry?

Green chemistry is the design of chemical productsand processes in a way that is intended to reduce oreliminate the use or generation of hazardoussubstances—taking into consideration the entire lifecycle of a chemical product, including its design,manufacture, use, and ultimate disposal. (Seegenerally EPA Green Chemistry webpage at http://www2.epa.gov/green-chemistry/basics-green-chemistry#definition.) In many instances, the goal ofgreen chemistry is the quest for “safer alternatives”that are “drop-in” or near drop-in replacements forsubstances that present greater risks to human healthand/or the environment.

How Are Green Chemistry PrinciplesApplied?

One way to apply the principles of green chemistryis to train chemistry students from the outset to havewww.ShopABA.orgwww.ShopABA.orgwww.ShopABA.orgwww.ShopABA.orgwww.ShopABA.org


an awareness of the health and environmental effectsof chemical substances and to encourage (e.g.,through regulatory and/or market incentives)innovators to design “less-risky” chemicalalternatives. Thus, finding so-called safer chemicalsto replace more risky existing chemicals in certaintechnologies is perhaps the most obvious of thegoals of the innovative side of green chemistry.Arguably, one of the most difficult aspects of greenchemistry is the part that involves taking intoconsideration the entire life cycle of a chemicalsubstance when considering potentially “safer”alternatives, as doing so can reveal some of theambiguities of green chemistry.

For example, if a new substance B is marginallyless toxic to humans than existing substance A, isequally persistent in the environment as A, yet isslightly more toxic to aquatic organisms than A, thenB might be considered a “safer” alternative to A inapplications in which no environmental exposuresor releases occur (e.g., as a chemical intermediatein manufacturing processes). B, however, might notbe a suitable substitute for substance A in laundrydetergents and hard-surface cleansers or otherscenarios in which routine, low-level releases tosurface waters would be predicted to occur. Thus, afull awareness of all of the uses to which asubstance can be put is a critical factor in assessingthe suitability of a substitute. Yet this exampleassumes that substances A and B function equallywell in all applications. If it is determined that theuse of substance B in a manufacturing operationrather than substance A leads to certaininefficiencies (e.g., results in greater energyconsumption), the risk/trade-off calculationsbecome even more complicated. Moreover, it is notclear how other more distantly related factorsshould be taken into account in safer alternativesevaluations, such as the environmental impactsassociated with transportation that could result if thesupplier of substance B is farther away from thedownstream user than the supplier of substance A.Clearly, legislating that green chemistry and apreference for “safer” alternatives be part of theregulatory decision-making framework is not asimple undertaking.

Treatment of Green Chemistry and SaferAlternatives in TSCA Reform Legislation

Two pieces of TSCA reform legislation wereintroduced this year thus far in the Senate, and nonein the House. The following examines the ways inwhich the Senate bills address green chemistry andthe pursuit of safe alternative chemicals.

SCAThe findings, policy, and goals provisions of SCAinclude specific terms addressing green chemistryconcepts. Thus, SCA states that it is the policy of theUnited States to “promote the use of saferalternatives and other actions that reduce the use ofand exposure to hazardous chemical substances andreward innovation toward safer chemicals,processes, and products.” In addition, “encouragingthe replacement of harmful chemicals and processeswith safer alternatives” is asserted to be a goal ofthe United States.

In addition to addressing green chemistry within thelaudatory language in the bill’s introductorypassages, SCA devotes an entire section (section31) to the topic, entitled “Safer Alternatives andGreen Chemistry and Engineering.” The bill wouldrequire EPA to expedite review of new chemicalsthat are considered to be safer alternatives and toestablish a recognition system for such substancesand other incentive mechanisms for encouraginggreener chemistries that the administrator considersappropriate. EPA also would provide funding for atleast four green chemistry and engineering centers,to be located in various regions of the United States,to support the development and adoption of saferalternatives to chemical substances the agencytargets for risk reduction action. EPA also wouldwork with educational institutions to establish aworkforce capable of pursuing greener chemistriesto include industrial and scientific workers withskills relevant to the production and use of the saferalternatives, “including the design, manufacturing,use, and disposal of the alternatives.”

CSIABy comparison to SCA, the more recent CSIA doesnot contain a specific provision concerning greenchemistry. Instead, the findings, policy, and intent


provisions state that “innovation in the developmentof new chemical substances, especially saferchemical substances, should be encouraged toreduce risk, provide improved products, stimulatethe economy, create jobs, and protect interstatecommerce.” Congress would direct theadministrator, in implementing an amended TSCA,to promote “innovation, including innovation inchemical substances that have reduced hazard,exposure, and risk patterns.”

Forecast for Green Chemistry in TSCAReform

Despite the clear interest in TSCA reform beingdemonstrated in the House by the handful ofhearings undertaken during 2013, without a bill yetin play there, it is hard to predict whether a billmight specifically include a green chemistry section.(Rep. John Shimkus (R-IL), chair of the HouseEnergy & Commerce Committee’s Subcommittee onEnvironment and the Economy called a September18 hearing to address chemical regulation and statepreemption in TSCA, an issue that has spawnedSenate debate over concerns that CSIA may preemptCalifornia’s green chemistry programs.) Thosefamiliar with the discussions addressing TSCAreform in Senate offices acknowledge that a versionof CSIA that reflects some green “tweaks” stands afar better chance of getting serious consideration onthe floor than the current CSIA. While it is widelybelieved that this will require the preemption termsbeing modified and some specific deadlines forchemical reviews being added, it is possible that arelatively non-controversial way to “green-up” thebill would be to enhance CSIA by slipping incertain passages from section 31 of SCA.

Lawrence E. Culleen and Peggy Otum arepartners at Arnold & Porter LLP where they eachhave active practices involving chemical-regulatory matters.

DTSC RELEASES FINAL SAFER CONSUMERPRODUCTS REGULATIONSLisa R. Burchi

On August 28, 2013, California’s Office ofAdministrative Law (OAL) approved the CaliforniaDepartment of Toxic Substances Control (DTSC ordepartment) Safer Consumer Products Regulations(regulations). The regulations took effect on October1, 2013. The regulations are the much-anticipatedregulatory implementation of California’s GreenChemistry Initiative. The regulations and finalstatement of reasons are available at http://www.dtsc.ca.gov/SCPRegulations.cfm.

The scope of the regulations, including the four coreelements of the regulations—candidate chemicals,priority products (PP), alternatives analysis (AA),and regulatory responses—is discussed below.

Scope of Persons and Products Subject tothe Regulations

The regulations apply to “responsible entities”:manufacturers, importers, assemblers, and retailers.The requirements for responsible entities are tiered,such that primary responsibility will lie with themanufacturer. The importer will have responsibilityif the manufacturer fails to comply. Retailers will berequired to comply only if the manufacturer andimporter (if any) fail to comply and this informationis posted on the failure to comply list on DTSC’sWeb site. Section 69501.2.

Under section 69501.1(a)(24)(A), a consumerproduct is defined as it is defined in Health andSafety Code Section 25251: “a product or part ofthe product that is used, brought, or leased for useby a person for any purposes.” The regulations alsostate that a consumer product also means “[w]henapplicable, a component of an assembled ‘consumerproduct.’”

The regulations apply only to consumer productsplaced into the stream of commerce in California.


Section 69501(b)(1). In addition to products notplaced into the stream of commerce in California,the following products are exempt from theregulations:

• Products exempt from the definition of“consumer product” as specified inCalifornia Health and Safety Code Section25251 (e.g., dangerous prescription drugsand devices; dental restorative materials;medical devices; pesticides; food; andpackaging associated with dangerousprescription drugs and devices, dentalrestorative materials, and medical devices);

• Certain consumer products that DTSCdetermines are regulated by one or morefederal and/or California State regulatoryprogram(s), and/or applicable treaties orinternational agreements with the force ofdomestic law;

• A product that ceased to be manufacturedprior to the date the product is listed as aPP; and

• A product previously owned or leased bysomeone other than the manufacturer,importer, distributor, assembler, or retailerof the product.

Sections 69501.1(a)(24)(B)-(C), 69501(b)(2)-(3).

DTSC to Develop a Candidate ChemicalsList

DTSC must establish, within 30 days after theeffective date of the regulations, a candidatechemicals list. DTSC released the list on September28, 2013 (see http://www.dtsc.ca.gov/SCP/index.cfm). DTSC estimates the candidatechemicals list contains approximately 1200chemicals of concern (COC). DTSC calls the list itreleased “informational.”

Under section 69502.2(a), the candidate chemicalslist includes those substances that exhibit a hazardtrait and/or an environmental or toxicological endpoint (identified through the Office ofEnvironmental Health Hazard Assessment’s(OEHHA) development of a Toxics Information

Clearinghouse pursuant to Health and Safety CodeSection 25256.1) and that meet one or more of thefollowing criteria:

• The chemical is included in one or more of15 different lists already selected by otheragencies and organizations. These includebut are not limited to:• Substances “known” to cause cancer or

reproductive toxicity under California’sProposition 65;

• Chemicals classified as carcinogens,mutagens, or reproductive toxicantsunder the European Commission’s (EC)Regulation (EC) 1272/2008, Annex VI,Category 1A and 1B chemicals;

• Chemicals identified as “known to be”or “reasonably anticipated to be” ahuman carcinogen under the NationalToxicology Program’s (NTP) Report onCarcinogens; and

• Chemicals identified as groups 1, 2A,and 2B Carcinogens by the InternationalAgency for Research on Cancer.

• The chemical is identified as belonging toone or more specified types of chemicals.These include but are not limited to:• Chemicals for which notification levels

have been established by the CaliforniaDepartment of Public Health;

• Chemicals for which primary maximumcontaminant levels have beenestablished in California; and

• Chemicals identified as toxic aircontaminants in California.

Section 60502.2(a).

Initial Candidate Chemicals ListPrior to January 1, 2016, DTSC will consider alimited scope of candidate chemicals whenreviewing product-chemical combinations (i.e., achemical listed on one or more of the authoritativeorganizations’ hazard trait-based chemical listsspecified in section 69502.2(a)(1), and that alsoappear on a chemical list that was developed basedon potential exposure concerns and specified insection 69502.2(a)(2)). Section 69503.6(a). This


initial candidate chemicals list, which was releasedon September 28, 2013 (see http://www.dtsc.ca.gov/SCP/index.cfm), is significantlysmaller than the 1200 substances listed in the fullcandidate chemicals list. The initial candidatechemicals list contains 164 substances, althoughthere are in fact more substances than this becausemany of the substances listed are part of a group andthere can be several individual members of a groupor class of chemicals that met the regulatory criteriafor inclusion on the initial candidate chemicals list

DTSC to Identify Priority Products

DTSC will evaluate and prioritize products thatcontain candidate chemicals to develop a list ofpriority products for which alternatives analysismust be conducted. To determine products of highpriority, DTSC will evaluate the potential adversehealth and environmental impacts posed by thecandidate chemical(s) in each product based onseveral factors:

• The potential adverse impacts posed by thecandidate chemicals (e.g., hazard traits,environmental fate properties) and potentialexposures (e.g., market presence, types ofuses) during the life cycle of the product;

• “[P]roduct uses, or discharges or disposals,in any manner that have the potential tocontribute to or cause adverse waste andend-of-life effects associated with theCandidate Chemical(s) in the product”;

• The “extent and quality of information that isavailable to substantiate the existence orabsence of potential adverse impacts,potential exposures, and potential adversewaste and end-of-life effects”;

• The extent to which other regulatoryprograms regulate the product; and

• “[W]hether there is a readily available saferalternative that is functionally acceptable,technically feasible, and economicallyfeasible.”

Sections 69503.2, 69502.3.

Once a candidate chemical becomes the basis for aproduct being listed as a PP, DTSC will designatethat chemical as a chemical of concern for thatproduct (i.e., it changes from being identified as acandidate chemical to being identified as a COC).Section 69503.5(b)(1)(B).

Alternatives Analysis Threshold (AAT)DTSC defines the alternative analysis threshold(AAT) as the “Practical Quantitation Limit for aChemical of Concern that is present in a PriorityProduct solely as a contaminant” or a concentrationby weight as specified by DTSC. Section69501.1(a)(12). This means there is no defaultthreshold (e.g., 0.01 percent by weight). Whenlisting a PP, DTSC also may specify an AAT for anyCOC that is an intentionally added ingredient.

Response to a PP ListingWithin 60 days after a product-chemicalcombination is placed on the PP list, responsibleentities will be required to provide a PP notificationto DTSC stating that they will conduct an AA unlessthey submit “alternative notifications.”

Alternative notifications to the PP notificationinclude:

• AAT exemption notification (where the COCis present only as a contaminant and theconcentration does not exceed the practicalquantitation limit, or does not exceed theAAT established by DTSC);

• Chemical removal notification (where theonly change is the removal of the COC fromthe PP without use of a replacementchemical or otherwise adding otherchemicals to the product);

• Product removal notification (if the PP willcease to be sold or distributed inCalifornia); and

• Product-chemical replacement notification(where the COC is removed from the PP andany replacement chemical meets certaincriteria).

Sections 69505.2, 69505.3.


Initial PP ListUnder section 69503.6, the initial PP list is limitedto no more than five products. DTSC must releasethe initial PP list for public comment and review nolater than 180 days after the effective date of theregulations, or by March 30, 2014. DTSC also mustreview the PP list at least once every three years.

Companies to Prepare Alternative Analysis

Responsible entities (generally, manufacturers) mustperform an AA for the listed COC-PP combinationto determine how best to limit potential exposuresor the level of potential adverse public health andenvironmental impacts posed by the COC in the PP.

Under the regulations, AAs must be conducted intwo stages. In the first stage, the responsible entitymust:

• Identify the PP’s Requirements: Theresponsible entity must identify the PP’sfunctional, performance, and legalrequirements that must be met for anypotential alternative; the role of the COC inmeeting the PP’s function, performance, andlegal requirements; and if the COC or anyalternative replacement chemical is“necessary” to meet the PP’s identifiedrequirements.

• Identify Alternatives: The responsibleentity must identify alternative(s) (e.g.,remove a COC, reformulate or redesign, orreduce the concentration of a COC). Section69501.1(a)(10).

• Identify Factors Relevant for Comparisonof Alternatives: The responsible entity mustidentify “relevant” factors (e.g., those thatmake a “material contribution” to one ormore adverse public health impacts, adverseenvironmental impacts, adverse waste andend-of-life effects, and/or materials andresource consumption impacts) for thecomparison of the PP and the alternative(s)under consideration.

• Evaluate and Screen AlternativeReplacement Chemicals: If applicable, theresponsible entity must evaluate and

compare each of the alternative replacementchemicals under consideration with the COCin the PP.

• Consider Additional Information: Theresponsible entity may consider otherrelevant information and data notspecifically identified above.

• Prepare Preliminary AA Report: Theresponsible entity must prepare thepreliminary AA report and develop a workplan and implementation schedule forcompletion of the second AA stage andpreparation and submission of the final AAreport.

Section 69505.5.

In the second stage, the responsible entity must:

• Identify Factors Relevant for Comparisonof Alternatives: The responsible entity canreevaluate the identification of factors underconsideration after completion of the firstAA stage. Additional factors forconsideration include product function andperformance and economic impacts.

• Compare the PP and Alternative(s): Theresponsible entity must then evaluate andcompare the PP and each of thealternative(s) under consideration withrespect to each relevant factor andassociated exposure pathways and life-cyclesegments, if applicable, identified.

• Select Alternative: The responsible entitymust select the alternative(s) that willreplace the PP, unless the decision is toretain the PP.

• Prepare Final AA Report: The responsibleentity must prepare a final AA report.

Section 69505.5.

DTSC and Public Review of AA ReportsWithin 60 days of receiving a preliminary AAreport, final AA report, or alternative reports,DTSC shall review the report for compliance andissue a notice of compliance, notice of deficiency,


notice of disapproval, or notice of ongoing review.Section 69505.9.

To provide a quality assurance mechanism for theAAs, DTSC will provide a public comment periodfor the final AA report and abridged AA report,review those comments, and then identify, no laterthan 30 days after the close of the public commentperiod, any issues that it determines need to beaddressed by the responsible entity in an AA reportaddendum. Section 69505.8.

Trade SecretsWith respect to any documents or informationsubmitted to DTSC, a person may assert a claim oftrade secret protection. Section 69509. Theseclaims will need to be substantiated by providingcertain information to DTSC specified in theregulations and by providing a redacted copy of thedocumentation being submitted with the trade secretinformation removed.The regulations provide that trade secret protectionmay not be claimed for any hazard trait submissionor for any chemical identity information associatedwith a hazard trait submission. Section 69509(f). Alimited exception will allow a responsible entity tomask temporarily the precise identity of a chemicalthat is the subject of a hazard trait submission “ifthat chemical is an alternative considered orproposed in an Alternatives Analysis, and a patentapplication is pending for the chemical or itscontemplated use in the product.” DTSC will allowthe masking of chemical identity only until theinformation is made public through any means, andrequires the person claiming the trade secret tonotify DTSC within 30 days of the information beingmade public. Section 69509(g)(1).

DTSC to Identify and Impose RegulatoryResponses on PP/COC Combinations

After evaluating the final AA report, DTSC isrequired to consider the appropriate regulatoryresponse. In selecting regulatory responses, DTSCshall seek to “maximize the use of alternatives ofleast concern when such alternatives are

functionally acceptable, technically feasible, andeconomically feasible.” Section 69506(a).

Possible regulatory responses triggered by DTSC’sfindings and determinations include:

• Product Information: In general, productinformation (e.g., brand name, COC, adverseimpacts) must be provided to consumers for:(1) PPs for which an alternative was notselected; (2) PPs that continue to beintroduced into commerce in Californiapending development and distribution of analternative product for longer than 12 monthsafter DTSC issues a notice of compliance ornotice of disapproval for an AA report; and(3) selected alternative products that retainCOCs and/or contain any replacementcandidate chemical(s).

• Use Restrictions: DTSC can impose userestrictions (e.g., restrict amount/concentration of a COC) on one or moreCOCs or replacement candidate chemicalsin a selected alternative, or COCs in a PPfor which an alternative is not selected, orrestrictions on the product itself that thedepartment determines necessary. Section69506.4.

• Sales Prohibitions: If a responsible entitydecides in a final AA report to retain anexisting PP or select an alternative that stillcontains a COC or replacement candidatechemical, this provision provides DTSC theopportunity effectively to override aresponsible entity’s decision based on adetermination that a safer alternative existsthat does not contain a COC or replacementcandidate chemical of concern and isfunctionally acceptable, technologicallyfeasible, and economically feasible. Section69506.5.

• Engineered Safety Measures orAdministrative Controls: The department“may require a manufacturer to engineersafety measures that integrally contain orcontrol access to, and/or implementadministrative controls that limit exposure


to, the Chemical(s) of Concern orreplacement Candidate Chemical(s) in aselected alternative, or the Chemical(s) ofConcern in a Priority Product for which analternative is not selected, to reduce thepotential for adverse impacts.” Section69506.6.

• End-of-Life Management: DTSC canrequire a responsible entity to establish,maintain, and fund (within one year) an end-of-life product stewardship program.Section 69506.7.

• Research and Development (R&D):DTSC also can require manufacturers toinitiate R&D products or fund challengegrants to design a safer alternative, improvethe performance of a safer alternative,decrease the cost of the safer alternative, orincrease the market penetration of a saferalternative. Section 69506.8.

Analysis

And so it begins. With the release of the candidatechemicals list on September 28, 2013, the clock hasbegun running for DTSC to identify the first set ofproposed PPs (180 days from the regulations’effective date—October 1, 2013). Companies withconsumer products in the stream of commerce inCalifornia that are identified as PPs will need tonotify DTSC that their product is a PP; perform anAA and prepare a preliminary AA report and finalAA report (or use an approved alternative); andcomply with any regulatory responses DTSCapplies to its product. Considering the time framesprovided, it will be years from the time thecandidate chemicals list was released; the initialpriority product list is released and then issued infinal; the AA process is completed; and theregulatory responses are issued. Companies alsomay need to respond to information requests fromDTSC, submit notifications to avoid AAresponsibilities, substantiate claims wheninformation is submitted as trade secret, andpotentially utilize the dispute resolution procedures

to dispute certain actions taken by DTSC (section69507).

While there are indications that these regulationsmay be subject to litigation, a prudent initial step forany company doing business in California toconsider is to review, when available from DTSC,the initial candidate chemicals list and determine ifany of its consumer products contain one of thosesubstances. It will also be important for companieswith products identified as PPs to identify otherentities similarly affected and determine the abilityto consolidate efforts (e.g., through a consortium) inconducting an AA.

Lisa R. Burchi is Of Counsel with Bergeson &Campbell, P.C. in Washington, D.C.

ANNOUNCEMENT

Pesticide, Chemical Regulation andRight-to-Know Committee, Science &Technology Committee, and theAmerican Cleaning Institute will host a“Friday Breakfast Forum” networkingevent.

DATE : Friday, December 6, 2013SPEAKER: Jessica Rich, Director for theBureau of Consumer Protection, FederalTrade CommissionAccompanied by: James Kohm,Associate Director for the EnforcementDivision, Bureau of Consumer Protection,Federal Trade CommissionTIME: 8:30 a.m. – 9:30 a.m. (ET)LOCATION: American Cleaning Institute1331 L Street, NW Suite 650Washington, DC 20005

We hope you and/or your colleague(s)can join us for this exciting morningprogram. There is no cost for attendingeither in-person or remotely.

Please send your RSVP to Joanne Thelmoat [email protected] or(202) 662-2519.


www.ambar.org/EnvironSocialMedia

EPA’S DESIGN FOR THE ENVIRONMENTPROGRAM: POISED FOR AN EXPANDEDROLE IN GREEN CHEMISTRY OF THE FUTURE?Shailesh R. Sahay

The Design for the Environment (DfE) program isone of numerous ways that the U.S. EnvironmentalProtection Agency (EPA) is pursuing “greenchemistry.” DfE is unique because it is a voluntaryprogram that relies heavily on partnerships betweenvarious stakeholders, including industry,environmental, and government representatives. DfEis housed within EPA’s Office of PollutionPrevention and Toxics.

According to EPA, the broad aims of its DfEprogram are to evaluate human health andenvironmental concerns associated with traditionaland alternative chemicals and processes and reducerisk to people and the environment by reducingexposure to harmful chemicals (http://www.epa.gov/dfe/). The program is split into threebroad areas of work:

(1) Recognition of safer products through theDfE label.

(2) Development of best practices for a varietyof industrial and commercial processes,such as those related to lithium ion batteriesand nail salons.

(3) Evaluation of safer chemicals and processesthrough alternatives assessment and life-cycle assessment.

Though EPA has made significant strides workingwith industry to advance green chemistry througheach of these programs, this article focuses on theDfE label. In general, there is evidence that the DfEprogram is poised to play an increasingly prominentrole in EPA’s green chemistry efforts.

DfE Standard for Safer Products and theDfE Label

The DfE labeling program is perhaps the mostvisible EPA initiative to consumers in the DfE

program. Through this program, producers ofcleaning products that meet a variety of stringentcriteria developed by EPA may add a logo to theirproducts accompanied by the text “Design for theEnvironment” and “U.S. EPA.” The logo is intendedto convey to potential consumers that the producthas met EPA’s stringent criteria. A variety ofproducts may qualify for the DfE label, includingglass cleaners, general purpose cleaners, washroomcleaners, carpet cleaners, laundry detergents, graffitiremovers, boat and car cleaners, drain cleaners,personal care, floor care, and other industrialproducts.

The criteria that EPA examines when assessingwhether a product qualifies for DfE labeling fallinto two categories: criteria related to the productas a whole, and criteria related to the individualchemical components that constitute the product.With respect to the latter, EPA takes a “functional”approach in evaluating individual components. EPAdivides cleaning products into functional groups,such as surfactants and solvents. When consideringan individual chemical that is part of a product, EPAcompares that chemical to other chemicals in thatfunctional class. In evaluating each chemical, EPAfocuses on inherent hazard characteristics of thechemical compared to its counterparts in the samefunctional class that could substitute for thatchemical in the product. Further detail regarding theEPA criteria is presented below.

Product Criteria

EPA delineates the criteria for DfE labeling in adocument known as the DfE Standard for SaferProducts (DfE Standard) (http://www.epa.gov/dfe/pubs/projects/gfcp/standard-for-safer-products.pdf).For a product to be eligible for the DfE label, itsproducer (referred to as a “formulator” by EPA)must enter into a partnership agreement with EPA.The agreement requires the formulator to submitcomplete product formulation information to EPA,including:

• The intended function or use of product ormaterial;


• The percent composition and function ofeach ingredient;

• The Chemical Abstracts Service (CAS)number for each ingredient; and

• Published and unpublished scientific studiesrelevant to the chemicals present in theproduct, when available.

For a product to carry the DfE label, ingredientinformation must also be publicly disclosed on theproduct label, on a Web site, or via a toll-freenumber. The DfE Standard provides that the CASnumber does not have to be provided for chemicalswhose identities are protected as trade secrets underthe Uniform Trade Secrets Act, and that a chemical-descriptive name can be used in lieu of morespecific identifying information for publicdisclosure purposes. Additional product criteriainclude those related to:

• Audits. A DfE partner must allow on-siteand paper audits to be conducted by a third-party verifier.

• Performance. The product must meet certainperformance criteria specified for that classof products (for example, glass cleaner orhand dish soaps) established byorganizations such as ASTM or theConsumer Products Specialty Association.These standards are intended to ensure thatthe product is not only environmentallyfriendly but also performs effectively.

• Packaging. Product packaging must meetsustainable packaging criteria developed bythe Sustainable Packaging Coalition, such asby using 25 percent renewable or recycledsource materials.

A number of other requirements are described in theDfE Standard.

Criteria for Safer Ingredients

As discussed above, in addition to the productcriteria, each ingredient in a DfE-labeled productmust meet individual ingredient criteria. EPA hasestablished a set of master criteria that applies to all

chemicals, and has also established sets of criteriathat apply to specific functional classes. Forexample, fragrances, solvents, and surfactants eachhave separate functional class criteria. In addition,EPA has moved beyond cleaning products andestablished safer ingredient criteria for productssuch as ice-melt and marine lubricant products,apparently also allowing products in thesecategories to earn DfE labeling.

The ingredient criteria focus on chemicalcharacteristics that EPA has deemed relevant tohuman health and the environment. For example, themaster criteria relate to human health andenvironmental toxicity, sensitization, environmentalfate, and eutrophication. An ingredient classified asa safer ingredient by EPA will either be designatedas low concern for these criteria or will be ofrelatively lower concern than other chemicals in thesame functional class.

Safer Chemical Ingredients List

Since 2012, EPA has been maintaining a list of saferchemical ingredients on its Web site. This listcontains chemicals in specific functional classes(such as solvents or fragrances) that already havebeen evaluated by EPA and met the relevant criteriafor safer ingredients. This listing allows formulatorsto select ingredients for products in a manner thatshould ease the ability to obtain DfE label approval.EPA has been seeking to expand the list ofchemicals on the site. In July, it added 119 approvedfragrance chemicals to the list, the first fragrancesdesignated as safer chemicals by EPA. The site intotal now lists 602 chemicals that have beenapproved by EPA.

Future of the DfE Program

The DfE is poised for changes on two fronts. First,EPA is in the midst of rebranding the DfE program.EPA is convening focus groups to help redesign theDfE logo and determine a communications strategyaimed at helping consumers understand the benefitsof purchasing DfE-labeled products. Second, EPAhas recently requested that the National Academy of


Sciences review its chemical assessmentprocedures, including the DfE program. Academyrecommendations could lead to changes in the DfEcriteria system.

Regardless of these potential changes, there isevidence that the DfE program is gainingmomentum. Recently, with the support of theEnvironmental Defense Fund, Wal-Mart announcedthat it is seeking DfE labeling for all of its in-housecleaning products. The decision of such aninfluential retailer to seek DfE branding could pavethe way for more consumer awareness of the DfEprogram, more demand for DfE products, and morecompanies developing products that meet DfEcriteria to satisfy this demand.

Shailesh R. Sahay is a member of theenvironmental practice group in theWashington, D.C. offices of Arnold & Porter LLP.

HELPING SAFER CHEMICALS OVERCOMEBARRIERS TO ENTRYBaskut Tuncak

There is an urgent need to expand the market shareof green chemicals, including intrinsically saferchemicals, in all markets—from Bangladesh toBelgium, cosmetics to construction. The investmentcommunity is seldom conservative in its estimatesfor what it views as promising emerging markets.Projected estimates by venture capitalists and othersophisticated investors forecast exponential growthfor green chemistry between now and 2020. Forexample, a 2011 assessment of green chemistry’smarket potential estimated it could soar from anestimated U.S. $2.8 billion in 2011 to U.S. $98billion by 2020.

Despite these optimistic projections by investorswith respect to green chemistry, more is needed tomeet the overarching goal by the global community“to achieve, by 2020, that chemicals are used andproduced in ways that lead to the minimization ofsignificant adverse effects on human health and theenvironment . . .” While progress has been made incertain countries around the world, much moreprogress is needed everywhere, even in the leadingcountries and regions of the world.

Using the chemical industry’s own estimates, theOrganization for Economic Cooperation andDevelopment (OECD) and the United NationsEnvironment Programme (UNEP) projectapproximately 25 percent growth by the chemicalindustry in industrialized countries through 2020.For some developing countries with nascentchemicals management regimes, estimates exceed50 percent growth during this time period. This putsthe global chemical industry on pace to grow toapproximately U.S. $ 6.5 trillion by 2020. To theextent that safer substitutes displace more hazardoussubstances in the market, this represents a positivestep in the right direction. Yet, even at the projectedrate of growth, green chemistry would amount to amere 1.5 percent of the 2020 market; a positivecontribution, but not a solution to the costs that

2014 Call for2014 Call for2014 Call for2014 Call for2014 Call forNominationsNominationsNominationsNominationsNominationsABA Section of Environment,Energy, and ResourcesEnvironment, Energy, and Resources Dedicationto Diversity and Justice AwardThe Environment, Energy, and Resources Dedication to Diversityand Justice Award will recognize people, entities, ororganizations that have made significant accomplishments ordemonstrated recognized leadership in the areas ofenvironmental justice and/or a commitment to gender, racial,and ethnic diversity in the environment, energy, and naturalresources legal area. Accomplishments in promoting access toenvironment/energy/resources rule of law and to justice can alsobe recognized via this award.

ABA Award for Distinguished Achievement inEnvironmental Law and PolicyThis award recognizes individuals and organizations who havedistinguished themselves in environmental law and policy,contributing significant leadership in improving the substance,process or understanding of environmental protection andsustainable development.

Nomination deadlines: May 5, 2014. These Awards will bepresented at the ABA Annual Meeting in Boston in August

2014.

For further details about these awards, please visit

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hazardous chemicals impose on businesses,workers, families, and public resources.

Innovation hinges on the adoption of inventions.Barriers exist, however, that prevent the entry ofsafer alternatives. To unlock the true potential ofgreen chemistry and meet the “2020 goal,” thesebarriers must be overcome. In the followingsections, key barriers that prevent the entry of saferalternatives are introduced, followed byrecommendations for policymakers that seek lawsand policies that create jobs and innovativebusinesses, while also protecting people and theenvironment.

Barriers to Entry for Safer Chemicals

Even if a potential chemical substitute isintrinsically safer and has improved functionality,this is not enough to displace hazardous chemicals.It must still overcome several barriers to entry to beadopted by downstream users. These barriersinclude economies of scale, the externalization ofcosts, and the lack of information about chemicalsand products on the market today.

First, safer chemicals must overcome the substantialeconomies of scale relative to safer alternatives.These economies of scale result not only from theeconomies inherent in higher production volumes,but also from long periods of inaction by regulatorsin which innovations could occur around theirproduction and use, with resulting increases inefficiencies and demand.

Second, safer chemicals must overcome the fact thatenormous costs associated with hazardouschemicals fall on individuals and governmentbudgets, not on downstream users or upstreammanufacturers of these chemicals who profit fromtheir use. Estimates for the environmentally inducedportion of costs to society or individuals for cancer,diabetes, obesity, and other diseases linked tohazardous chemicals are in the hundreds of billionsof dollars per year for the United States alone.

Third, recent experiences show that the lack ofinformation about chemicals and products on themarket today can impede the development andadoption of safer alternatives. Without adequatehazard and exposure information to restrict the useof hazardous chemicals, regulators have not beenable to remove entrenched hazardous chemicals toenabling the entry of safer alternatives. Moreover,these experiences also illustrate how incompleteinformation on potential alternatives can enablecases of substituting one hazardous chemical with adifferent hazardous chemical, as opposed to saferalternatives.

Stronger Laws Help Bring Safer Chemicalsto Market

Overcoming the inertia of entrenched hazardouschemicals requires the power of the government. Topromote the adoption of safer alternatives,governments can enable economies of scale todevelop around safer alternatives rather thanincumbent chemicals of concern; internalize thestaggering costs that are borne by the public, notprofit-making entities; and address informationasymmetries to empower both regulators andconsumers to further incentivize and reward greenchemistry.

The power of the government is inextricably linkedwith effective laws. To increase the likelihood thatsafer chemicals will be pulled into the market asthey become available, chemical laws need toidentify clearly hazardous properties that are notacceptable in society, generate information aboutthese properties in all chemicals, and require theirsubstitution with safer alternatives in a systematicway.

Experiences with chemical laws and policiesaround the world prove that the following arenecessary elements of effective policies that notonly drive innovation, but also create a safer marketplace: (1) placing the burden of proving chemicalsafety on chemical manufacturers; (2) phasing outcertain chemicals that cannot be managed in anenvironmentally sound manner, including endocrine


disruptors; (3) internalizing the costs of chemicalpollution; (4) promoting access to information; and(5) developing international laws that ensure a levelplaying field globally.

These elements ensure that laws for chemicals sparkthe invention and development of alternatives, andpull safer inventions into the market, turninginvention into innovation and realizing the truepotential of green chemistry. As policymakers in theUnited States and around the world considernecessary changes to laws that govern chemical use,evaluating proposals in light of these necessaryelements will help to ensure protection forconsumers who increasingly demand saferchemicals.

Baskut Tuncak is a staff attorney and chemistwith the Environmental Health Program at theCenter for International Environmental Law(CIEL).

OUR HOME STATE PUTS THE SPOTLIGHT ONCHEMICALS AND EXPOSUREEric Lindstrom

The California Safer Consumer ProductsRegulations (SCPR) took effect on October 1, 2013,and the California Department of Toxic SubstancesControl (DTSC), which administers the SCPR, hasalso published an “informational initial candidatechemicals list.” Part of California’s GreenChemistry Initiative, the SCPR is described byDTSC as a program “to reduce toxic chemicals inconsumer products, create new businessopportunities in the emerging safer consumerproducts economy, and reduce the burden onconsumers and businesses struggling to identifywhat’s in the products they buy for their families andcustomers.” The SCPR are designed to accomplishthis through four essential stages: (1) identificationof “candidate chemicals” by DTSC; (2) selection ofpriority products by DTSC; (3) submission ofalternatives analyses by manufacturers (or otherresponsible parties) on the priority product/chemical(s) of concern; and (4) issuance of aregulatory response by DTSC (i.e., DTSCdetermines the fate of the designated priorityproduct/chemical of concern combination).

In a previous rulemaking, DTSC published an“informational candidate chemicals list,” whichcomprised the 1200-chemical universe of“candidate chemicals.” DTSC’s new list of“informational initial candidate chemicals”represents a narrowing of DTSC’s initial focus to45 groups of chemicals containing approximately160 individual chemicals.

DTSC will next choose three to five consumer“priority” products containing one or more of theseapproximately 160 chemicals for the first round ofpriority products/chemicals of concerncombinations. The priority products will be subjectto the SCPR’s requirement that the responsiblecompanies conduct alternatives analyses, fromwhich DTSC will determine the products’regulatory fate. Although the list has a number of

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chemicals that are not likely to be contained inconsumer products sold in California (e.g., dioxins,polychlorinated biphenyls (PCB), polycyclicaromatic hydrocarbons (PAH), nitrosamines, andvarious chlorinated solvents), the list has a numberof interesting entries, notably:

• Parabens: butylparaben (includes nbutylparaben and isobutylparaben),ethylparaben, methylparaben,propylparaben, potentially used aspreservatives in cosmetics and otherconsumer products;

• Fuel oils, high sulfur; heavy fuel oil (andother residual oils); fuel oil, no. 6; heavyfuel oil; gasoline (automotive, refined,processed, recovered, and other unspecifiedfractions); gasoline, natural; low boilingpoint naphtha; jet fuels, JP 4, JP 5, JP 7, andJP 8; petroleum; crude oil; and used mineralbased crankcase oil;

• Brominated flame retardants, includinghexabromocyclododecane (HBCD);

• Phthalates of various types;• Isocyanates, potentially used in

polyurethane-based adhesives, includingmethylene diphenyl 4,4'-diisocyanate (MDI)and toluene diisocyanate (TDI);

• 4,4'-Diaminodiphenylmethane (MDA),potentially used in epoxy resins;

• Glycol ethers and glycol ether acetates,potentially used in lubricants and frictionoils;

• Tetrahydrofuran, potentially used in varnishand adhesives;

• Beryllium and beryllium compounds,potentially used in certain electronic goods;

• Cadmium, lead, mercury, and compoundsthereof;

• Various aromatic azo dyes; and• Styrene.

Although it is difficult to predict DTSC’s next steps,the department will need to cull the list to come upwith its initial list of up to five priority products/chemicals of concern combinations. DTSC plans topropose these initial priority products/chemicals of

concern combinations within the next six months(early 2014) and prepare the list in final after noticeand comment rulemaking.

Attention is most likely to focus on those substancesthat are perceived to generate high exposures toCalifornians, especially sensitive subpopulations,including children, and where being designated inthe first priority group is thought to result insignificant exposure reduction.The text of the Safer Consumer ProductsRegulations can be found at the following link: http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/upload/Text-of-Final-Safer-Consumer-Products-Regulations-2.pdf.

The text of DTSC’s informational initial candidatechemicals list can be found at the following link:http://www.dtsc.ca.gov/SCP/upload/Group_Initial_Candidate-Chemicals-List.pdf.The text of DTSC’s informational candidatechemicals list of 1200 chemicals can be found at thefollowing link: http://www.dtsc.ca.gov/SCP/upload/Group-Member-Candidate-Chemicals-List.pdf.

Eric Lindstrom is with Keller and Heckman LLP’sSan Francisco office.

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FROM GREENWASH TO GREENMAIL:POLICING THE GREEN COMMERCEMOVEMENTCharles L. Franklin

Business is booming in the sustainable commercespace. Even as the country struggles to fuel arecovery from the unprecedented recessionaryeconomic conditions of 2008–2009, the overalldemand for “green,” more “sustainable” productsand services has not only held, it has grown.

In September 2011, the market research firmPackaged Facts reported that retail sales of greencleaning products had more than doubled over fouryears, from $303 million in 2007 to $640 million in2011. A 2011 report by Pike Research projected thatthe international “green chemistry” market wouldgrow from $2.8 billion in 2011 to close to $100billion by 2020. These numbers are still just afraction of the larger chemicals and productsmarkets, but they are getting the attention ofbusinesses, governments, and nongovernmentalorganizations (NGO) alike.

But to what end? Green commerce means differentthings to different stakeholders. Progressivemanufacturers and retailers see green chemistry andcommerce as ways to generate corporate goodwill,provide greater value to customers, and distinguishtheir products and services from competitors.Government regulators see green chemistry as amore politically palatable, market-based way toencourage innovation and transition toward “safer,”more sustainable business practices. NGOs see thegrowing green chemistry and green commercemarket as evidence that technology forcing—usingregulatory, market, and social pressure—works. Tosome degree, all of these characterizations—orresults—of the green chemistry and green commercetrend are true.

But the growing demand for greener products andservices—and the enthusiastic embrace of the trendby stakeholders across the political spectrum, alsohas a dark side. More than ever, consumers,

companies, governments, and watchdogs need todistinguish between the health and environmentalclaims associated with specific substances,products, and services, and their objective healthand environmental attributes. Without greaterscrutiny of both positive and negative health andenvironmental claims, the green commercemovement threatens to become little more than arhetorical device used to advance the business andpolitical interests of specific factions, to thedetriment of consumers, businesses, andcommunities alike. Here are two ways that false andmisleading claims are undermining the legitimacy ofthe green commerce movement.

Greenwashing: The first use of the term“greenwashing” is typically attributed to a 1986essay by Jay Westervelt, a field biologist andactivist, criticizing efforts by hotels to justifyreduced towel service based on environmentalgrounds. Defined by the Oxford AmericanDictionary as “disinformation disseminated by anorganization so as to present an environmentallyresponsible public image,” the term entered intocommon parlance during the late 1990s and 2000sas consumer interest in green commerce reached atipping point, resulting in an explosion ofenvironmental marketing in mainstream marketsalong with a variety of questionable claims andpractices. TerraChoice Environmental MarketingInc., now a subsidiary of UL Industries, provided aparticularly popular distillation of commongreenwash tactics in its 2007 report, “The Six Sinsof Greenwashing,” which, as later amended to add a“sin,” referenced:

1. The Hidden Trade-off (i.e., highlightingone positive attribute while ignoring aglaring negative);

2. No Proof (i.e., making claims withoutadequate substantiation);

3. Vagueness (i.e., making overly broad orunqualified claims lacking necessarycontext);

4. Worshiping False Labels (i.e., use ofmeaningless labels, logos, and endorsementsto exaggerate or conjure green attributes);


5. Irrelevance (i.e., claiming attributes that,even if true, lack relevance or importance inthe context of the product or industry);

6. The Lesser of Two Evils (i.e., citingmarginal improvements in a health orenvironmental attribute to redeem afundamentally irredeemable product orservice), and;

7. Fibbing (i.e., outright lying). See http://sinsofgreenwashing.org/.

Today, numerous academic, governmental, andNGOs have adopted, defined, and applied the term“greenwash” to reflect a wide variety ofenvironmental marketing practices that use expressor implied claims to exaggerate, misstate, or eveninvent health and environmental benefits of aproduct or service. Government regulators like theFederal Trade Commission (FTC), state attorneysgeneral, and state and local regulatory agenciesactively monitor business communications and takeenforcement action against false and misleadingclaims, supplementing the aggressive oversightefforts by industry watchdog groups like the BetterBusiness Bureau’s National Advertising Divisionand NGOs like Greenpeace and Sourcewatch.

Greenmailing: Surprisingly, for all of the attentiongiven to false, exaggerated, and misleadingenvironmental claims by commercial businesses,few regulators or consumer watchdogs appear toapply similar standards of accuracy, clarity, andfairness to claims asserting negative health orenvironmental attributes to substances, products, orservices. Contrary to its dictionary definition as acorporate takeover tactic, here I am using the term“greenmail” to describe the threat or use ofexaggerated, misstated, vague, or factuallyunsupported allegations of health or environmentalrisk to discredit substances, products, services, andcompanies, and to force changes in corporateoperations or product content —essentially theconverse of greenwashing. Playing on the term“blackmail,” the term can be polarizing, having beenused by the World Resources Institute (WRI) todescribe NGO campaigns to discourage thepurchase of paper products and palm oil from

Indonesian and Chinese producers, by Californiapoliticians and developers to describe threats oflitigation under the California EnvironmentalQuality Act as a method for extracting money andconcessions from developers; by Australianpoliticians to describe the use of NGO-derivedcertification standards to direct Australiangovernment land management efforts, and even bycritics of the U.S. Environmental ProtectionAgency’s so-called sue-and-settle program.

But readers need not accede to thesecharacterizations to understand or apply the term asused in this article. Instead, consider the FTC’s ownenvironmental marketing guidance.

A Green Guides Primer on DeceptiveEnvironmental Claims

If reasonable people can disagree on whatconstitutes a false and misleading environmentalclaim, the FTC has done its best to reduce theuncertainty. In 1999, FTC published its firstGuidelines for Environmental Marketing (GreenGuides), providing non-binding guidance on thecommission’s interpretation of false, deceptive, andmisleading environmental marketing conduct underits statutory authority governing unfair competition.15 U.S.C. § 45(a); 16 C.F.R. § 260. FTC hasamended its Green Guides several times, mostrecently in October 2012, to address new marketingterms-of-art and new issues of concern. Thoughlacking the force of law, Green Guides offer animportant guidepost to the commission, the regulatedcommunity, and the broader public by identifyingpresumptive prohibitions and safe harbors withrespect to marketing practices. For example, theGreen Guides establish general principlesapplicable to all environmental marketing:

• Express and Implied Claims: Marketers areaccountable for all claims reasonablyconveyed by a marketing statement oradvertisement, whether express or implied,and whether intended or not. 16 C.F.R. §260.2.


• Substantiation: Marketers must be able tosubstantiate claims, both express andimplied, under a “reasonable basis” test. Id.

• Qualification: Marketers must qualify andlimit claims where the purported claimwould otherwise expressly or impliedlyoverstate the attribute or benefit. Id. § 260.3.

• Product vs. Package vs. Service:Marketers must limit claims to the relevantportion(s) of the product, package, orservice. Id.

• Negligible vs. Significant Benefits:Marketers should not make express orimplied claims for environmental attributeswith a negligible net benefit. Id.

• Special Care with ComparativeStatements: Where marketing materialsmake explicit or implicit comparisonsbetween the environmental attributes of oneproduct or process and another, the materialsshould make the basis for the comparisonsufficiently clear to avoid consumerdeception. Id.

The Green Guides also provide more tailoredguidance and limits for a long list of commonly usedenvironmental claims and terms-of-art, discussingpotential sources of consumer confusion andoffering examples of compliant and noncompliantclaims. For example, companies will often make“free-of” claims that imply a health orenvironmental benefit from the absence of a specificsubstance in a product or service. Under FTC’sanalysis, even a verifiable claim may still bedeceptive “if the product, package, or servicecontains or uses substances that pose the same orsimilar environmental risks as the substance that isnot present,” or “if the substance’s presence doesnot cause material harm that consumers typicallyassociate with that substance.” Id. § 260.9.

The Green Guides Policy in Practice

A review of FTC’s enforcement page or evensimple Google TM search will provide numerousexamples of how FTC has applied its Green Guidesprinciples to police corporate environmental claims

deemed greenwash. A more interesting exercisemight involve applying the same principles topotential cases of greenmail. Take the ubiquitoushazard-based labeling requirement establishedunder California’s Safe Drinking Water and ToxicEnforcement Act of 1986, also known as “Prop 65.”Under Prop 65, California has published a list ofroughly 900 chemicals, including alcohol and wooddust, “known” to cause cancer or birth defects orother reproductive harm under certain laboratory orexposure conditions. Businesses that use a listedsubstance in the California workplace ormarketplaces, or that distribute products containingthe listed chemical above a de minimis thresholdwithin California, must provide state-mandatedwarning language on the product labeling or at thepoint of sale/commerce, along the following(paraphrased) lines:

WARNING: This [product/area][ contains/uses] achemical known to the State of California to causecancer, birth defects, or other reproductive harm.

Failure to include the required language in theappropriate form or location can expose thebusiness to enforcement and third-party civil suitliability. Proposition 65 supporters argue that thelaw is a critical tool in fulfilling the consumer’s andworker’s “right to know” about hazards in theirenvironment, thus giving them the informationnecessary to take appropriate risk managementprecautions.

Under the basic standards established under theFTC Green Guides, however, the mandated warninglanguage appears to violate many of the basic tenetsof fair labeling. Like so many of the environmentalmarketing claims deemed misleading by NGOs andregulators, the express claim in the Prop 65warning—that the product or establishment containsa specific substance—may be factually correct. Butit is the warning’s implied claim—that use of theproduct or presence in the establishment exposes theindividual to a material risk of harm—that isquestionable, if not deceptive. By design, thestandards used to trigger a Proposition 65 warningare set well below the exposure levels deemed tocause environmental or health risks based on


science or objective regulatory standards. Theunqualified nature of the mandatory claim, and therequired “warning” language accompanying it,implies an imminent, or at least material risk to theuser. Just as with so many of the environmentalclaims vilified as self-serving and misleading,consumers have no way to gauge whether avoidingthe labeled product or establishment in favor ofanother will offer any health or environmentalbenefit at all.

Of course, FTC lacks the statutory authority toreview a state-mandated disclosure requirement likeProposition 65, and, if the recent furor over thepreemption provisions in the bipartisan ConsumerSafety Improvement Act (S. 1009) bill to amend theToxic Substances Control Act (TSCA) is any guide,the administration would be hard-pressed tochallenge the California congressional delegationover the state’s right to mandate a state-basedhazard disclosure law. Still, for practitionersadvising clients on the legal and policy foundationfor FTC’s environmental marketing policy, it isdifficult to rationalize holding corporateenvironmental claims to reasonable standards ofsubstantiation, qualification, and materiality, whileupholding laws requiring the same companies tolabel their products with warnings that have notreceived the same level of scrutiny.

In any event, for companies and counselors lookingto ride the wave of green commerce, perhaps thefundamental lesson is that claims matter, and thatgreen claims are receiving greater scrutiny than everbefore—from customers, competitors, regulators,and third-party litigants. From a defensiveperspective, however, even companies remainingagnostic on the green marketplace need to be awarethat government and third-party efforts to promotegreener products and services are increasinglyputting conventional products and services undernegative scrutiny as well. Even the most ardentgreenwashing opponents seem happy to letgreenmailing claims fall where they may.

Charles L. Franklin is an attorney with Akin GumpStrauss Hauer & Feld LLP in Washington, D.C.

GREEN CHEMISTRY HAS ARRIVED . . .ALTERNATIVE ANALYSES SHOULD BERESPECTFULLY APPROACHEDEric P. Gotting and Martha E. Marrapese

Of the four stages of product assessment envisionedunder the California Safer Consumer ProductsRegulations (SCPR)—identification of “candidatechemicals,” selection of priority products,submission of alternatives analyses (AA), andissuance of a regulatory response—the AAsubmission bears close examination by the legalprofessional. The AA submission will be a publicstatement by a manufacturer or other partyconcerning various aspects that include a discussionof the relative risks of a product compared toreplacement products. It is within the grasp of thosetasked with crafting these submissions whether theAA becomes an admission against interest later onor showcases a company’s responsible system ofproduct assessment and management.

The SCPR is being administered by the CaliforniaDepartment of Toxic Substances Control (DTSC).DTSC’s list of “informational initial candidatechemicals” consists of 45 groups of chemicalsrepresenting approximately 160 individualchemicals. DTSC is expected to cull through this listto identify up to five priority product/chemicals ofconcern combinations. For those manufacturerswhose products may fall on the initial priority list,and who therefore may be faced with preparing AAsfor these items, the potential impacts that the SCPRcould have on product liability suits should beconsidered. As we indicated in our companionarticle on the subject (PCRRTK CommitteeNewsletter, November 2012, Vol. 14, No. 1), theanalysis that will be completed in the AA process—including consideration of the risks posed by thechemical of concern, anticipated consumerexposures, and whether a safer alternative exists—may be relevant to future product liability suits. As aresult, crafting an AA should be approached withproper care and attention with an eye toward futurelitigation. Consideration should be given to:


· Reviews of these particular regulatorysubmissions by in-house counsel before theyare submitted;

• Filing joint AA reports to avoidinconsistencies among submissions andprovide manufacturers with somepredictability;

• The type of scientific and technicaldocumentation that will be adequate todemonstrate that the product does not posean unreasonable risk to consumers;

• Narrow crafting of the AA, within therequirements imposed by the SCPR, so as toavoid implicating other substances and usesnot identified by DTSC;

• Paying close attention to any availableexemptions from the AA requirements (e.g.,where the chemical of concern in the productdoes not exceed the AA threshold specifiedby DTSC);

• Recognizing where an AA may actually helpfend off potential litigation or defend againstproduct liability suits (e.g., where no viableproduct alternatives exist may mean that aplaintiff will have a difficult time showingthat the product is defective); and

• Protecting sensitive business information, tothe extent permitted by law, against publicdisclosure when working through the AAprocess.

Complying with the SCPR and the AA requirementsmay only be half the battle. The potential for futurelitigation means that the impact of an AA report maycontinue long after it has been completed.Manufacturers and their counsel should, therefore,begin thinking about these issues now as they beginto meet their obligations under California’s greenchemistry initiative.

Eric P. Gotting and Martha E. Marrapese are withKeller and Heckman LLP’s environmentalpractice group.

ALTERNATIVES ASSESSMENTS FORCHEMICALS OF CONCERN: IN SEARCH OFA UNIFORM STANDARDWarren U. Lehrenbaum andJoshua M. Kaplowitz

The linchpin of California’s Green ChemistryInitiative is the “alternatives analysis” (AA) thatresponsible entities must perform on “priorityproducts” that contain chemicals of concern todetermine how best to limit the chemicals’ potentialharm to the environment and human health.California’s Department of Toxic SubstancesControl (DTSC) has yet to issue guidelines forconducting AAs. If and when those guidelines areissued, they will join an expanding list of AAguidance documents that manufacturers, users, andpurchasers of chemical products must sort through.This article surveys ongoing government and privatesector AA initiatives, and recommends a uniformapproach that will provide certainty to industry andregulators and confidence to consumers.

State AA Guidance

California’s Safer Consumer Products Regulationsdirect DTSC to provide the regulated communitywith guidelines for conducting AAs. When itprovides that guidance, DTSC will not be workingfrom a blank slate. Earlier this year, acomprehensive draft document, Guidance forAlternatives Assessment and Risk Reduction (AAGuidance), was released by an 11-state consortium,the Interstate Chemical Clearinghouse (IC2). Theconsortium, which includes member agencies fromCalifornia, Connecticut, Maine, Massachusetts,Michigan, Minnesota, New York, Oregon, Vermont,and Washington, received substantial financial andtechnical support from the U.S. EnvironmentalProtection Agency (EPA) and EPA’s Design for theEnvironment (DfE) program in assembling the AAGuidance. The state of Washington, which has beenincreasingly active over the past several years inregulating chemicals in consumer products soldwithin the state, and which is implementing its owngreen chemistry regulatory program, helped leadthis effort.


The AA Guidance articulates a so-called golden rulethat defines the overall objective of the alternativesassessment process: “to replace chemicals ofconcern in products or processes with inherentlysafer alternatives, thereby protecting and enhancinghuman health and the environment.” To achieve thisobjective, the AA Guidance presents severaldecision-making frameworks for identifying andselecting alternatives to “chemicals of concern.”Highlights of the draft guidance include:

• Two sets of analytical “modules” that are tobe used to (i) identify potential alternativesand (ii) evaluate the desirability of selectedalternatives. Each module examines adifferent aspect of the alternative beingassessed (for example, there are modules for“hazard,” “exposure,” “performance,” etc.).The guidance presents these modules as a“buffet” that allows users the flexibility toselect whatever particular combination ofmodules they want to employ in conductingtheir assessment.

• Different levels of scrutiny are allowedwithin a given module, providing individualusers the option of developing a more, orless, rigorous and robust analysis, dependingon the individual user’s needs andobjectives. Different tools are provided fordifferent levels of analysis.

• Decision rules are provided to guide theuser in performing an assessment using theoutputs from the various “modules.”Alternate decision rules allow individualusers the option of developing a more, orless, robust assessment depending on theindividual user’s needs and objectives.

• The draft guidance also articulates broadprinciples for conducting an alternativesassessment, including transparency indecision making, flexibility in conducting theanalysis, and consideration of the life-cycleimpacts of a product.

During a public comment period, severalstakeholders criticized the draft AA Guidance for(among other things):

• Failing to distinguish between hazards andpotential for exposure;

• Failing to address protection of trade secretsand other confidential business information(CBI);

• Offering a set of assessment options that isunworkable for differing industries that usehundreds and thousands of inputs;

• Lacking criteria for judging what anacceptable alternative is; and

• Failing to address integration with existingand future regulatory obligations.

It is unclear when the AA Guidance will be issuedin final, how it will change, and whether and how itwill be integrated into existing regulations.

Washington State’s Department of Ecologyadvertises two voluntary tools for companies toconduct AAs; the GreenScreen™ methodology andthe simpler Quick Chemical Assessment Tool(QCAT). See http://www.ecy.wa.gov/programs/hwtr/ChemAlternatives/index.html. GreenScreen™is purportedly based on EPA’s DfE program and hasalready been used by the department in evaluatingalternatives to a class of brominated flameretardants. QCAT is intended for companies thatfind GreenScreen™ “too complicated andexpensive to implement.”

Federal AA Guidance

Although certain EPA actions under the ToxicSubstances Control Act (TSCA), such as regulationunder section 6, require the agency to conduct anassessment of alternatives, the current statute doesnot include a broad green chemistry componentrequiring alternatives analyses for substancesidentified as high priority chemicals. In the absenceof a legislative mandate, EPA has continued to pressforward with its voluntary DfE program. Broadlyspeaking, the DfE program identifies products andprocesses that have been determined to be“effective and safer” for human health and theenvironment and that can display the DfE logo ontheir labeling. In addition, the program maintains asafer chemical ingredients list that provides productmanufacturers with a list of chemical ingredients


that satisfy the criteria of the Safer Product LabelingProgram.

The DfE program also conducts alternativesanalyses for specific chemicals and chemicalcategories, including, in particular, chemicalsdesignated for risk assessment under EPA’sChemical Work Plan program. In conducting thoseanalyses, DfE follows a relatively narrow hazard-based approach to alternatives assessment, which isset forth in its Alternatives Assessment Criteria forHazard Evaluation guidance document. See http://www.epa.gov/dfe/alternatives_assessment_criteria_for_hazard_eval.pdf.

Recently, EPA has signaled an intent to developmore broadly applicable risk-based AA guidanceand as part of that effort, the agency has sponsored aNational Academy of Sciences (NAS) committee toassist in developing such guidance. The NAScommittee is charged with “develop[ing] a decisionframework for evaluating potential safer substitutechemicals as determined by human health andecological risks.” The framework will focus oncharacterizing risk and environmental impact forchemical substitutions, and will analyze trade-offsbetween risks and benefits such as productfunctionality, product efficacy, process safety, andresource use. NAS’s report, which is expected to beissued in spring 2014, will provide at least twoexamples that demonstrate how the framework canbe applied. At this point it remains unclear whether,and when, the NAS framework will lead to thedevelopment of formal EPA guidance, and howbroadly that guidance may be applied.

Private Sector AA Guidance

The world’s largest retailer is not waiting for stateand federal regulation to impose its own AArequirements on its vendors. In September 2013,Walmart announced its new consumables chemicalsinitiative designed to “reduce or eliminate the use ofpriority chemicals used in consumables products infavor of greener alternatives.” Walmart has statedthat its program “will begin with householdcleaning, personal care, beauty and cosmeticproducts, asking suppliers to transition to greenersubstitutes for priority chemicals.” Walmart has

compiled an initial list of ten “high priority”chemical ingredients for “continuous reduction,restriction, and elimination, using informedsubstitution principles.”

Beginning in January 2014, Walmart will “monitorprogress on high priority chemical reduction,restriction, and elimination.” See http://az204679.vo.msecnd.net/media/documents/wmt-chemical-policy_130234693942816792.pdf. It willbegin to publicly report on progress in January2016. Walmart has not publicly announced theprocess by which its vendors will be asked toanalyze alternatives to these high priority chemicals.Given the market power wielded by Walmart, anypolicy it imposes on its vendors could be at least asconsequential as any future California greenchemistry AA guidance.

Toward a Uniform Standard

Companies that make chemicals or use them in theirmanufacturing processes are at risk of facing apatchwork of competing approaches to AAs fromthe federal, state, and private sectors. Industry andthe public would be best served by a standardapproach that allows all stakeholders to beconfident that proper science is being applied to thesearch for safer substitutes for high prioritychemicals. Depending on how well the NAS reportintegrates the best elements of existing AAframeworks, and how quickly the NAS frameworkcan be incorporated into useable guidance forstakeholders, EPA may provide the most appropriateand most effective vehicle for adoption of anationwide approach to alternatives assessment.

Warren Lehrenbaum and Joshua Kaplowitz aremembers of Crowell & Moring’s Environment,Energy & Resources Group.

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