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UCLA School of Law report urges California to take legislative action

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More than 2,000 chemicals are used in consumer or commercial products such as toys, clothing, and electronics; many are now also in the bodies of men, women and children. A new report published by UCLA School of Law's Emmett Center on Climate Change and the Environment assesses California's new chemical regulatory program and concludes that the state must strengthen its program in significant ways in order to adequately protect public health.

Timothy F. Malloy's "Toxics in Consumer Products: California's Green Chemistry Regulations at a Crossroad," the Emmett Center's third Pritzker Environmental Law and Policy Brief, makes a case for new legislation to strengthen California's nascent chemical regulation program, known as AB 1879. According to Malloy, who serves on California's Green Ribbon Science Panel and is a faculty director of UCLA's Sustainable Technology and Policy Program, "AB 1879 has the potential to drive meaningful change in the design of consumer products, but achieving that potential requires California to give regulators the authority and resources they need to make this innovative program work." Malloy concludes that without such changes the program will lose teeth, transformed into little better than a "quasi-voluntary" effort.

Among the report's key recommendations are that California:

  • Require the review of new chemicals for safety before their introduction into commerce;
  • Require that consumer product manufacturers and others provide regulators with important data regarding the uses and hazards of chemicals in consumer products;
  • Clarify the law to prefer safer alternative products over more dangerous ones; and
  • Provide regulators with the authority to collect fees to adequately fund the program.

One of the most significant problems with the current law, according to "Toxics in Consumer Products," is that it does not actually incorporate the prevention-based approach to chemicals for which it has been lauded. Malloy recommends reforming legislation to expressly include the preference for safer alternatives. This would ensure that the implementing agency, the Department of Toxic Substances Control (DTSC), will emphasize prevention relying upon safer alternatives rather than upon risk management. "If two chemicals are both right for a job, both similarly affordable and available," Malloy says, "shouldn't we be ensuring that the safer one be used and the more dangerous one be left behind?"

"Toxics in Consumer Products" also recommends that DTSC create a set of concrete decision making rules to direct the review of alternatives methods and the selection of regulatory responses. Such rules, he says, "will provide assurance that decisions made under AB 1879 are consistent, transparent, and driven by concerns for social welfare rather than by private interests."

The report also calls for the adoption of a regulatory fee to support the program. The report notes that even as the costs of implementing the new program are about to rise, the funds available to DTSC for it are substantially shrinking. Malloy sets out the standards for a regulatory fee program that meets Proposition 26's requirements, observing that "[a] regulatory program is only as robust as its funding source."

Ultimately, the report finds California's program to have significant potential to reform the design of consumer products and shape innovative chemical policy, and urges that new legislation can help it achieve its potential.

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