California regulators have identified toxins in children’s nap mats, spray-foam insulation and paint strippers as part of a far-reaching law that could affect consumers, manufacturers and retailers across the U.S.
Naming the first three “priority products” California will seek to eliminate under a new law, the state’s Department of Toxic Substances Control singled out foam in kids’ sleep products that contain the flame retardant TDCPP; spray polyurethane foam made with diisocyanates; and paint strippers with methylene chloride.
Under California’s Safer Consumer Products regulations enacted last year, companies will be asked to replace the alleged toxins with an alternative substance shown to be less hazardous. If they don’t, their product could be banned in California. The state is the most populous in the U.S. -- accounting for more than one out of every 10 people in the country -- so the agency’s decisions are likely to affect how companies sell products nationwide.
“It’s going to be a huge program, it’s going to be massive, and it’s going to be expensive,” said Pamela Williams, executive vice president at the California Retailers Association in Sacramento. Still, her group has been involved with the process for years, “in every draft and redraft,” which has eased the impact, she said.
In the course of enacting the law, legislators and their industry and scientific advisers winnowed down 1,100 hazardous chemicals to a priority list of about 150. Today’s list focused on common items where both the risk to human health and the method of exposure were clear, the agency said. They will keep building out the group with announcements of additional products, including a list of new categories in October.
Once the first three products are adopted as part of the law, the clock will start ticking. Manufacturers will then have 180 days to complete an analysis of alternatives, then another year to finish a final analysis once the first one is approved by the state. California will maintain a public failure-to-comply list, issue warnings and can ultimately ban an item’s sale.
It will probably take a year before the products identified today are formally added to the new law, Williams said. Even so, some of her members may want to act earlier, she said. That means retailers may stop selling certain products without waiting for manufacturers to replace potentially harmful ingredients.
“Their immediate attention is going to be looking internally at what of these products do we sell, what alternatives might there be now, and is there anything we want to do differently now?” she said.
Retailers have already become more aggressive in policing toxins. Wal-Mart Stores Inc. (WMT) has said it will require suppliers to phase out 10 toxins from the products it sells, and Target Corp. (TGT) is reviewing chemical use with its suppliers. For their part, manufacturers have been taking steps such as removing the chemical BPA from baby bottles.
When California enacted its law last year, the state said it would name three to five products by April. It settled on only three because those items had the strongest information backing up the decision, said Debbie Raphael, director of the toxic substances department. She declined to say which ones had dropped off the list.
The three chemicals also stood out to the agency because they’re used in such high concentrations, Raphael said.
The chemical in children’s foam pads -- TDCPP -- isn’t disclosed on labels, though it can make up 1 percent to 5 percent of the foam matter by weight. The majority of paint and varnish strippers, meanwhile, have more than 60 percent of methylene chloride by volume. Spray-foam systems typically contain as much as 50 percent of diisocyanates by volume, said Tamma Adamek, a spokeswoman for the California agency.
TDCPP, a halogenated flame retardant, is already included in California’s Proposition 65, a 1986 law that listed potentially carcinogenic substances in order to protect drinking water. It also prohibits businesses from knowingly exposing individuals to listed substances.
The substance is known as a “regrettable substitute,” meaning it was adopted to replace another chemical perceived as dangerous and turned out to be similarly hazardous. The new law aims to avoid a repeat of that situation by requiring established safe alternatives, rather than just banning a substance.
That will prevent a “Whac-a-Mole” approach to regulating harmful substances, where another toxin pops up just after you eliminate the original one, said Arlene Blum, a former environmental health researcher at the University of California at Berkeley and founder of the Green Science Policy Institute.
Albemarle Corp. (ALB), which once made TDCPP, phased it out in 2012, spokeswoman Jennifer Vaccaro said in an e-mail. ICL Industrial Products, which sells it under the trade name Fyrol, may be the only remaining manufacturer, according to IHS, a research and consulting firm.
ICL said it’s a leading producer of the chemical, which is used in Europe, the U.S. and China. The substance has gone through “an extensive health and safety review by the EU which concluded it is safe in its intended uses,” Greg Symes, a company spokesman, said in a statement.
Blum’s research almost 40 years ago concluded that TDCPP, also known as “chlorinated tris,” is a so-called mutagen that could alter DNA. She also found that the chemical was pervasive, making up about 10 percent of the weight of some children’s pajamas and showing up in urine.
Her work contributed to a successful effort to remove the substances from children’s pajamas in the 1970s. In 2006, Blum discovered the chemical was back in use in furniture and baby products and she began to share the information.
The Juvenile Products Manufacturers Association, a Mount Laurel, New Jersey-based trade group, has already begun phasing out TDCPP and another flame-retardant chemical, TCEP, said Kate Bowen, a spokeswoman.
“We expect our member manufacturers will be fully compliant in order to advance the safety of juvenile products,” she said in an e-mail.
Flame retardants are a diverse group of chemicals that help stop or slow the spread of fires, said American Chemistry Council spokeswoman Kathryn Murray St. John, speaking on behalf of the North American Flame Retardant Alliance.
“With respect to TDCPP, the European Union evaluated health and safety data in 2008 and concluded that TDCPP is not a concern for consumers at expected exposure levels,” she said. “We hope this finding will be factored into any discussions related to this chemical.”
Methylene chloride is used by the professional furniture-stripping industry, as well as by do-it-yourselfers. Its producers include Occidental Chemical Corp., Dow Chemical Co. and several other large global chemical companies, according to IHS. Dow didn’t immediately respond to a request for comment, while Occidental declined to comment.
Spray foams with diisocyanates are used for weatherizing and sealing. The main danger lies when the chemical is used in certain two-part systems that combine to create spray foam, with the risk occurring before the substance has hardened, said Karl Palmer, who runs the department’s toxics in products unit. Exposure to the substances during usage can cause permanent respiratory problems after even a couple instances.
Home Depot Inc., the largest home-renovation chain, uses a third-party firm to identify potentially affected products, said Stephen Holmes, a spokesman for the Atlanta-based company. Many of the retailer’s suppliers are also monitoring and often proactively complying with the changes, he said.
3M Co. (MMM), a St. Paul, Minnesota-based company that makes both paint strippers and spray foams, warns in data safety sheets that inhalation of high concentrations of its spray foams may be “harmful or fatal.”
“We continue to look for alternatives. In the meantime, we are using the safest isocyanates,” said Jacqueline Berry, a spokeswoman for the company. The isocyanates provide “very specific properties” to the foams, which are used by industrial customers with protective equipment, she said. 3M doesn’t use methylene chloride in any of its paint strippers, Berry said.
California’s law changes burden of proof from an assumption that a substance is safe until proven otherwise. Instead, it adopts a process similar to that of Europe, which applies a precautionary principle: A chemical is potentially dangerous until proved safe.
Proof of Safety
“These are hazardous chemicals linked to cancer and asthma that should never have been allowed into products in the first place,” said Renee Sharp, director of research at Environmental Working Group, a public health advocacy group based in Washington, D.C.
Johanna Congleton, a senior scientist at the group, said that the main benefit of the law is that it “shifts some of the burden of proving safety to the manufacturer.”
Initiatives by states, manufacturers and retailers have sprung up amid a failure to update the Toxic Substances Control Act of 1976, which grandfathered thousands of chemicals into everyday products without requiring safety testing. The American Chemistry Council has said in response to earlier announcements of California’s initiative that the current “patchwork” of state laws and marketplace initiatives is harmful, and that it believes the most effective way to oversee the use of industrial chemicals is through the reform of TSCA.
The council said it was “disappointed” that today’s announcement included products that are already being evaluated by the Environmental Protection Agency and noted that the program has yet to undergo an economic and environmental review.
“Being included on this list does not mean that the state has determined there is a risk of harm posed by the use of these products,” the trade group said in a statement. ACC represents chemical companies including Albemarle, Dow and Occidental.
For some, California is progressing too slowly. The three products named today aren’t as dangerous as other things that Americans use, said Dara O’Rourke, a professor of environmental and labor policy at the University of California at Berkeley.
“Are we still in the 1980s? All three of these are very well-known bad actors we’ve had decades of research on,” said O’Rourke, who founded GoodGuide product-safety guide in 2007. Of the 200,000 food, toys, and other household products that it ranks for toxicity, none contained the three chemicals.
While he’s supportive of California’s program, O’Rourke also is disappointed.
“I thought this would push industry faster, and to move away from broad classes of chemicals with human health hazards,” he said. Instead, the industry is probably going to be relieved, since most large companies have already phased out these three chemicals, he said.
Under a tentative timeline, the state will gather information from industry, consumers and the general public in May and June of this year, and complete a rule-making process by late 2015.
Paul Rosenlund, a lawyer in the San Francisco office of Duane Morris LLP, who advises companies on product liability and toxic tort cases, said companies across the U.S. should already be reacting.
The regulation “opens up companies anywhere to an increased potential for lawsuits in any state -- with claims that products with these chemical are unsafe, have caused injury or are likely to cause injury,” Rosenlund said. “As a practical effect, the limitations imposed on products in California will have a national scale. That is really the intent of the people who enacted the regulation,” he said.
Even mom-and-pop retailers who don’t sell to California could be in trouble, Rosenlund said. Should an Internet site resell their product in the state, the original shop could be sued -- even if it claimed to take reasonable steps to keep the chemical out of California. Retailers that import their products also are potentially at risk. Under U.S. regulations, they are the only party that can be pursued for a noncompliant product, Rosenlund said.
Lawsuits against manufacturers could seek costs for medical monitoring, and claims for damages from consumers that say they bought the product in the past based on mislabeling, or false claims it was safe, Rosenlund said.
The law will create “winners and losers” among manufacturers and chemical companies, depending on how quickly they respond, said Peter Hsiao, a partner in the Los Angeles offices of Morrison & Foerster who specializes in environmental law.
“These three products will be the canary in the coal mine for both the regulatory agencies and manufactures,” he said.