Green Chemistry Initiative Regulations Released For Comment
By Guest Blogger Lee Smith
California is on the cusp of approving draft regulations that are proposed for California’s new Green Chemistry Initiative (GCI) .Green chemistry, per the initiative, is the process for reducing or eliminating the use of hazardous materials by transitioning away from managing toxic chemicals at the end of the lifecycle, and instead reducing or eliminating their use from the start. In other words green chemistry seeks to provide incentives to remove hazardous ingredients and chemicals from products sold in California.
The statutory basis for the GCI in California was AB 1879 (2008 Cal. Stat. Chapter 599), which provides statutory authority for the California Department of Toxic Substances Control (DTSC) to adopt regulations for identifying and prioritizing “Chemicals of Concern” within consumer products and for evaluating safer alternatives to toxic chemicals. Another bill, SB 509 (2008 Cal. Stat. Chapter 560), establishes an online Toxics Information Clearinghouse to provide information about the toxicity and hazard traits of chemicals used in California. The bills also create mechanisms to provide guidance and oversight through a newGreen Ribbon Science Panel of experts and by expanding the role of the Environmental Policy Council, made up of heads of the California Environmental Protection Agency boards and departments.
In March 2010, DTSC made public a conceptual process flowchart that established the
framework for the regulatory process. The second step created and made public an outline of
the Draft Regulations for Safer Consumer Products. This outline proposed a framework for scientific and systematic prioritization of chemicals and products of concern, preparation of alternatives assessments and development of DTSC’s regulatory responses. The next step was the development and release of the draft regulations that occurred in June.. The draft regulations specify the processes for DTSC to scientifically and systematically identify and prioritize chemicals and consumer products, for manufacturers to conduct alternatives assessments and for DTSC to impose regulatory responses for alternatives selected by manufacturers. To get a feel for the regulations, the conceptual model can be found here. The conceptual model is complex, as are the regulations, which have resulted in comments, both pro and con. Essentially the regulations apply to “all consumer products made available for use in California;” judging by the litigation that has occurred with respect to Proposition 65, this sentence provides coverage beyond the manufacturer-retailer-consumer relationship that is usually the target of this type of regulation.
“Make available for use in California” means that a person sells, offers for sale, distributes, leases, offers to lease, supplies, or otherwise transfers control overthe disposition of a consumer product directly to a California consumer; or to another person without maintaining sufficient control over the distribution, sale, lease, supply, or other transfer of the consumer product by that person to prevent the use of the consumer product by a California consumer.”
“Sell or offer for sale” means any transfer or offer to transfer for consideration of title or the right to use, by lease or sales contract, including, but not limited to, transactions conducted through sales outlets, catalogs, or the Internet, or any other similar electronic means.” CHAPTER 53 OF DIVISION 4.5 OF TITLE 22, CALIFORNIA CODE OF DRAFT REGULATIONS Sec. 69301.2 Definitions.
Products that are identified as violating the initiative cannot be sold in and must be recalled from the California market. Under the sections concerning identifying products of concern, full disclosure of the chemical makeup of the products is required. Several lists of chemicals are to be compiled including Chemicals of Concern and Chemicals under Consideration. To provide an idea of the complexity, without going into detail, the outline for 61 pages of regulations is 21 pages long.
The list of “Chemicals of Concern,” includes carcinogens, mutagens, neurotoxins and compounds that disrupt hormones, persist in the environment or accumulate in human bodies. DTSC would pick priority products that are heavily used by children, pregnant women, the elderly and other sensitive populations.
Manufacturers, suppliers and importers would have to certify to the state and to retailers that their products on the list are free of chemicals before they would be able to sell them in California. In some cases, they would also perform assessments to find safer alternatives.
There are already comments from the industry that the regulatory process is unworkable and from the environmental camp that the initiative should go farther to protect public. Comments have been submitted by various groups. TheAdministrative Procedures Act process calls for public hearings and a 45-day public comment period. Specific information about the APA process will be announced when the final draft regulation is available for review.
Delio v. McDonald's Corp.: The Connecticut Grilled Chicken Case
It took our intrepid docket clerk a few weeks of digging, and finally contacting the plaintiffs' counsel directly, to get a copy of the complaint in Delio v. McDonald's Corp., a case filed in Superior Court in Hartford County, Connecticut on October 6. Plaintiff's counsel is Robert Solomon, a clinical professor at a small New Haven law school called Yale, along with Daniel Kinburn of The Cancer Project.
Unlike the Denny's suit on which both Ken and I have blogged previously, the Conneciticut Grilled Chicken case is remarkably streamlined in its allegations and the remedies sought. The named plaintiffs in the class action suit are two Connecticut residents who consumed grilled chicken products at McDonald's, Burger King and Friendly's stores in Connecticut between October 21, 2006, the date on which the complaint claims McDonald's and Burger King were warned their grilled chicken products were tested to show they contained PhIP, or 2-Amino-1-methyl-6-phenylimidazo[4,5-b]pyridine, a carcinogen, and October 17, 2008, when the plaintiffs allegedly became aware of the cancer-causing effects of grilled chicken. The remedy claimed, beyond what would be nominal damages for the named plaintffis' purchase of grilled chicken products, is an injunction under the Connecticut Unfair Trade Practices Act which would require warning labels to sell these defendants' grilled chicken products. They also seek punitive damages and attorneys' fees, although the complaint's allegations on those points appear thin.
The complaint is quite readable. Missing are claims of violations of a warranty of merchantibility, or similar claims. The plainitffs appear more willing, instead, to focus solely on their judicial attempt to require a warning label, and then only in Connecticut. Without getting into the validity of their claims, or their motives (which have been questioned by others), this is at least a style of litigation that focuses solely on the issue of food safety and an appropriate remedy.
There are some interesting questions in the case, however. One is why Friendly's was added as a defendant. It is not for the usual reason, an attempt to keep the case from being removed to federal court, because Friendly's is incorporated and headquartered in Massachusetts. But the allegations about testing of products relate only to McDonald's and Burger King; there is just an allegation that Friendly's "is assumed to be aware of health issues pertinent to restaurants anywhere in the United States" and and even more conclusory, "Upon information and belief, Defendants' grilled chicken products are prepared in the same manner throughout the United States." What is missing, though, is any direct allegation that anyone has tested Friendly's grilled chicken products and found they contain PhIP.
The broader question is why this claim is appropriate for judicial resolution, as opposed to legislative or agency action. If the plaintiffs are right, one presumes the issue is not limited to McDonald's, Burger King and Friendly's, yet the relief requested, if granted, would apply only to them, and only in Connecticut. One assumes the plaintiffs desire that if granted their relief, at least every restaurant grilling chicken in Connecticut would follow suit in putting their desired warnings in place, but enforcement would only be by additional separate suits that would require proof in each instance. That is cumbersome and inefficient and does not protect the public if the public needs to be protected.
KFC just came out with a huge ad campaign for Grilled Chicken; they are not defendants. TV chefs promote grilled chicken all over television; they are not defendants. Barbecue manufacturers encourage their customers to use their grills to grill chicken; they are not defendants. Chicken producers encourage their customers to grill their chicken products; they are not defendants. I have no idea whether any of these products contain PhIP, but if there is to be a conversation about the health impacts of grilled chicken, I would think they should all be at the table. And with all due respect to the Hartford County Superior Court, I'm not sure one of its judges is the right person to have at the head of the table.
