On July 1, 2021, the California Department of Toxic Substances Control (DTSC) adopted a new “priority product” under the state’s Safer Consumer Products (SCP) program: rugs and rugs containing substances perfluoroalkyl or polyfluoroalkyl (PFAS). Companies that manufacture, import, distribute, sell or assemble rugs and rugs containing PFAS that are sold in California will have until August 30, 2021 to provide a DTSC notice and will need to assess alternatives to using PFAS by now. December 28, 2021.
Key points to remember:
Manufacturers of rugs and rugs containing PFAS that are sold in California will be affected, although there are a number of exceptions.
Entities responsible for carpets and rugs containing PFAS must submit a Priority Product Notification (PPN) to DTSC by August 30, 2021. Responsible entities must then submit additional analyzes and documentation by December 28, 2021.
While the primary responsibility for compliance rests with manufacturers, other responsible entities should also remain informed. Responsibility for compliance rests with the importer, retailer or assembler if the manufacturer has failed to comply with the requirements and the DTSC has published the information on the non-compliance list.
The SCP is California’s green chemistry law. As part of the SCP program, the DTSC is required to identify and prioritize chemicals of concern and to assess consumer products containing these chemicals in order to limit exposure or reduce the hazards associated with the use of chemicals. chemicals in consumer products. As Beveridge & Diamond previously pointed out here and here, DTSC designates a consumer product and chemical of concern as a priority product when it finds that (1) the product is likely to be exposed to the chemical, and (2) there is has a potential for one or more exposures to contribute or cause significant or widespread negative impacts.
Responsible entities must then notify DTSC if they produce, assemble, import or sell a priority product; perform an alternatives analysis (which requires the evaluation and comparison of a priority product and one or more alternatives to determine if there is a safer and feasible alternative); and submit an alternatives analysis report to DTSC. Based on the results of the alternatives analysis, the DTSC may impose a range of regulatory responses to address the hazard or potential exposure, including:
Require additional product information for consumers.
Impose use restrictions on chemicals and products.
Prohibit the sale of a product; require technical checks.
Require end-of-life management.
Order funding for green chemistry research.
The DTSC noted its particular designation proposal in February 2020, held a hearing in May 2020, accepted public comments, and revised the analysis supporting the designation, with details available here. This is the fourth final and effective designation of a priority product by the DTSC to date. A full list of priority products that have been proposed or adopted by DTSC under the SCP program can be found here.
Priority Product Scope
This priority product designation covers all PFAS, an approach that can make compliance difficult. PFAS include approximately 5,000 substances. The designation does not distinguish between the various potential routes of exposure or levels of toxicity, but rather groups all PFAS substances together.
The DTSC has identified rugs and rugs as a major source of PFAS, as a large percentage of the PFAS produced globally is used to treat rugs, rugs and other home textiles to give them water resistance, to stains and oil. The regulations apply specifically to all consumer products containing PFAS that are intended for use as flooring inside commercial or residential buildings. The regulation contains a number of exceptions, including: rugs and carpets intended only for outdoor use, resilient flooring, artificial turf, drapes and wall coverings, placemats and camping mattresses. In addition, the regulation does not apply to rugs and carpets intended only for use inside planes, trains, ships or vehicles.
Reporting requirements and next steps
Responsible entities must now assess whether rugs or carpets sold in California contain PFAS. If the floor coverings do not contain PFAS, no further action is required. Responsible Entities whose rugs and carpets contain PFAS must submit a Priority Product Notification (PPN) to DTSC by August 30, 2021. After submitting a PPN, Responsible Entities must then submit one of the following by 28 December 2021:
a notification of intent / confirmation to eliminate chemicals
a notification of intention / confirmation of product deletion
a notification of intent / confirmation of chemical replacement, or
a preliminary report on the analysis of alternatives.
While manufacturers have the primary duty to comply with regulations, other responsible entities may include importers, assemblers or retailers of rugs and rugs containing PFAS. If the manufacturer does not comply with the regulations, importers must stop placing the priority product in the trade flow in California, and retailers or assemblers must stop ordering the priority product and submit a discontinuation notification to the DTSC. .
The designation may be subject to legal challenge, which could potentially suspend the notification and declaration deadlines. Public comments raised issues with the regulation of PFAS as a class, equating persistence with toxicity and challenging information supporting DTSC.
At this time, companies subject to designation will need to assess the scope of the designation and notification requirements. Companies that sell other consumer products in California containing PFAS should continue to follow the development of DTSC rules. The DTSC has currently proposed to list food packaging as well as treatments used on textiles or processed leathers, such as carpets, upholstery, clothing and footwear, containing PFAS.
Ashley Campfield, a summer associate, also contributed to this article.