Manufacturers of Children’s Nap Mats And Other Similar Products Must Perform Alternatives Analysis To Remove Flame Retardant Chemical TDCPP or TCEP Pursuant to California’s Safer Consumer Products Act

Effective July 1, 2017, manufacturers of children’s foam-padded sleeping products, such as nap mats, with flame-retardant chemicals, must eliminate or find safer alternatives for TDCPP or TCEP, used as flame retardant, for any such products sold in California. This is the first regulation under the Department of Toxic Substances Control’s Safer Consumer Products Act, which requires manufacturers to make products safer, or face DTSC imposing institutional controls on the products in the California marketplace.

The new rule focuses on children’s foam-padded sleeping products, such as nap mats, that contain the flame retardants TDCPP or TCEP. DTSC determined that this product-chemical combination has the potential to cause significant adverse health impacts because TDCPP and TCEP are known to cause cancer and have been associated with endocrine disruption and reproductive and developmental toxicity. These flame retardants have been found in dust sampled in homes, offices, and day care centers in California.

Manufacturers of these children’s sleeping products will be required to notify the Department by September 1, 2017, 60 days of the regulation effective date of July 1, 2017. The notifications can be submitted through the CalSAFER information management.

The new regulation specifically governs polyurethane foam-padded sleeping products, including: nap mats and cots, sleep positioners, travel beds, bassinet foam, portable crib mattresses, playpens, and car bed pads.

Children’s foam padded sleeping products containing TDCPP or TCEP is the first Priority Product to be regulated under California’s Safer Consumer Products regulations. Other products that have been proposed or that are under consideration for regulation are:

• Spray Polyurethane Foam Systems containing unreacted methylene diphenyl- diisocyanates. These products are used for home and building insulation, weatherization, sealing and roofing.
• Paint Strippers Containing Methylene Chloride, a known carcinogen and neurotoxin.

DTSC established the Green Chemistry Initiative in 2007 to provide a framework for understanding and reducing the impacts of products containing toxic chemicals in the state. The Safer Consumer Products Act is a key part of the State’s Green Chemistry Initiative.

Under the new rule, manufacturers (or responsible entities) of the Children nap mat type products sold in California must conduct an Alternatives Analysis (AA) of the products to determine if the chemicals TDCPP or TCEP can be eliminated from the product or if there is a safe alternative for the chemicals.

The first stage of the AA involves an initial screening of alternatives with a preliminary analysis to identify the legal, functional, and performance requirements of the Priority Product and Chemical of Concern and uses this information to identify and screen alternatives to consider. When the first stage is completed, the manufacturer (or other responsible entity) documents and submits to DTSC the findings in a Preliminary AA Report, along with a Work Plan. A related article written by the California Environmental Lawyers of Bick Law LLP can be found here.

The steps in the first stage of the AA are:

Step 1: Identify product requirements & function of Chemicals of Concern, including determining the necessity of the Chemical of Concern and the safety of the Chemical of Concern.

Step 2: Identify alternatives.

Step 3: Identify factors relevant for comparing alternatives, including factors that have a material contribution to one or more adverse impacts and a material difference in contribution to such impacts between the Priority Product and alternatives.

Step 4: Initial evaluation and screening of alternative replacement chemicals.

Step 5: Consider additional information, including economic impacts.

Step 6: Submit Preliminary AA Report.

During the second stage AA, the manufacturer follows the approved Work Plan from the first stage AA and compares the Priority Product with the identified alternatives. The second AA stage contains an in-depth analysis that refines the relevant factors and product function descriptions of the first stage and expands the analysis to consider additional impacts, including life cycle and economic impacts.

When the Alternatives Analysis process is complete, the manufacturer may be required to select an alternative chemical ingredient or alternative product design or may be allowed to retain the existing product-chemical combination with certain institutional controls or regulatory restrictions. The restrictions could include any of the following:

1. Supplemental information and regulatory response revisions.
2. Product information for consumers.
3. Use restrictions on chemicals and consumer products.
4. Product sales prohibition.
5. Engineered safety measures or administrative controls.
6. End-of-life management requirements.
7. Advancement of Green Chemistry and Green Engineering through research grant funding.

The California Environmental Lawyers of Bick Law will continue to follow this issue and provide updates.