If a recently proposed set of regulations in California is enacted, manufacturers would need to identify and substitute alternative chemicals in their manufacturing processes if they want to continue selling their products in the state. Called the Green Chemistry Initiative, it is a comprehensive set of rules that could affect up to 3,000 chemicals if state officials deem them as harmful.
Crowell & Moring, a Los Angeles-based law firm, posted on its website that, according to the proposed regulations as they’re currently worded, even manufacturers that don’t sell products into California would have to be vigilant about whether their products end up being sold in the state because they would be subject to the regulations. The importer would have responsibility if the manufacturer fails to comply, and retailers will be required to comply only if the manufacturer and importer (if any) fail to comply, according to the law firm.
Retailers would be responsible for ensuring compliance for listed products on California’s Department of Toxic Substances Control’s (DTSC) website, as well.
Such tracking, monitoring and compliance would come at a cost, which would be passed onto consumers, even if the products are found to be in perfect compliance with regulations.
According to a HomeChannel News report, the DTSC would oversee the regulations and collaborate with product manufacturers to assess whether any product containing “chemicals of concern” can be made with safer ingredients. If the companies refuse to comply, the sale of the products can be banned from California.
If there’s one thing that manufacturers don’t look forward to do, it is “collaborate” with governmental regulatory agencies. The state agency may have legitimate concerns about the chemicals used in manufacturing processes, but it also may be that lobbyists from green firms are influencing California’s government.
Amy Westervelt, an environmental journalist, wrote in Forbes that there may be some other motives driving support for the legislation. Health care giant Kaiser Permanente, she wrote, is a big supporter of the proposed regulations, as “the effort required to pinpoint chemicals of concern and find safer products is a drain. Kaiser has been asking the state to shift the responsibility off buyers and onto manufacturers.”
As with any government regulation scheme, it works the way advocates claim only when the people doing the regulating are completely impartial and extensively informed arbiters who are under no influence from lobbyists.
Back in 2010, when earlier parts of the wide-ranging Green Chemistry Initiative were being discussed, GreenBiz.com reported that environmental lobbyists who had enthusiastically supported the regulatory push withdrew their support at the last minute when provisions were added to require the state to prove that a chemical is harmful before being able to be regulated, mirroring what’s currently required at the federal level.
While such a move would seem to be common sense, green advocates would prefer that companies be required “to prove that the chemicals they’re using are safe before putting them in products,” as GreenBiz noted.
Obviously, this makes the product producers’ jobs much harder and confers far more discretionary power to a state government that is already heavily influenced by the green lobby. It is far, far more difficult to prove a negative than a positive: It’s difficult to convincingly prove that some chemical will never be harmful in any permutations in the future — especially to people who have a vested interest in finding some harm and can lobby the government for alternatives.
OpenMarket.org succinctly sums up the fears surrounding the legislation, noting that the government’s grasp goes beyond basic safety regulations:
Regulators will impact product formulations and designs by listing both chemicals and products on “concern” lists based on largely political, rather than scientific grounds … regulators will force some companies to study alternative formulations and redesign products — even when there is no sound science demonstrating any serious health or safety risks.
Nobody opposes the general intent of the regulations, which is to protect people from harmful chemicals in products. John Kabatek, California executive director for the National Federation of Independent Business, wrote in the Los Angeles Business Journal that the Green Chemistry Initiative, on the surface, seems “reasonable,” but pointed out that it would, in practice, “empower a relatively obscure department [DTSC] with imposing overly costly and onerous regulations that will not only delay California’s economic recovery and invite a bonanza of drive-by lawsuits but also increase costs for all employers, small-business owners in particular.”
Kabatek noted that frivolous lawsuits put more companies out of business than taxes ever do and that the regulations are a gold mine for “drive-by lawyers,” who surely can threaten punishing litigation for “a product commonly found on most any merchant’s shelf that is 99.9 percent free of a chemical and deemed safe by federal regulators and other states.”
In fact, Maureen Gorsen, a former DTSC director whom Kabatek identified as an attorney with Alston & Bird, has publicly stated:
The requirements imposed not only lack rational, scientific justifications but will discourage manufacturers from doing business in California and importing their products no matter their safety record, and this threat is even greater for small and emerging businesses [that] can’t afford enormous compliance costs or the legal exposure.
It seems sensible to first establish which chemicals are, in fact, harmful in which products and quantities and specifically regulate those, instead of making all manufacturers compile expensive, time-consuming studies of all their ingredients.