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California’s Green Chemistry Initiative: What It Means To Manufacturers And Consumers

By Brent G. Cheney, Counsel in Manatt, Phelps & Phillips’ Energy, Environment & Natural Resources practiceCalifornia recently launched an initiative to cut down on hazardous chemicals and to promote greener products. Read on to find out how this may affect you.

In April 2007, the California Environmental Protection Agency (Cal EPA) launched its Green Chemistry Initiative to “promote innovation, create new jobs, and keep people safe from harmful substances,” and to “ensure that California’s historic role as an environmental leader will continue into the new century.” As part of this initiative, Cal EPA spent the next year gathering information and recommendations from more than 600 participants, ranging from industry leaders to trade organizations to environmental and community organizations, to identify the green chemistry options available to California. 

Based on the options identified by Cal EPA, California recently enacted two green chemistry bills, effective January 1, 2009, to implement some of these options: AB 1879 (Feuer) and SB 509 (Simitian).  These bills further California’s Green Chemistry Initiative by ensuring that by 2011 California manufacturers, distributors, retailers, and consumers will know what toxins are in the products they buy, sell, and use.

What is Green Chemistry?

Green chemistry in its broadest sense seeks to manufacture products using less toxic materials, less energy, and less waste.  Rather than seeking to minimize the impacts of hazardous substances during the manufacture, use and disposal of a product, green chemistry seeks to employ a new set of principals aimed at cutting or reducing hazardous substances from the production and use of products all together.  It aims to ensure that at the end of the product’s lifecycle, all or nearly all of the product may be recycled.

By instituting aggressive green chemistry policies, California believes that it can stimulate its economy by encouraging companies to adopt a “cradle-to-cradle” approach to consumer products, wherein manufacturers incorporate into the design of new products and processes renewable feedstocks, recycling, sustainability, and other lifecycle attributes.  This cradle-to-cradle approach will result in less hazardous substances in the marketplace, along with improved air quality, cleaner drinking water, safer work places, and fewer product recalls.  Several companies already attribute millions of dollars in annual savings to this approach.

California’s Green Chemistry Initiative

In April 2007, Cal EPA launched its Green Chemistry Initiative, which aims to fill the following information and safety gaps that exist in the current federal and state chemical regulations:

The Data Gap -- The federal government has not passed any major chemical regulations in more than 30 years and has banned few if any substances from commerce in more than 20 years. The health and environmental effects of many industrial chemicals are unknown, and buyers lack information.

The Safety Gap -- Because businesses are not required to disclose the exact contents of chemicals in their products, public agencies lack the means and/or ability to gather hazard information from producers.  As a result, public agencies feel they cannot proactively regulate known hazards or require producers to accept greater responsibility for the lifecycle impacts of their products. 

Current laws also do not require manufacturers to assume full responsibility for the health and environmental impacts that can occur after the lifecycle of their products.  This perceived safety gap has been compounded by California’s chemical policy that has reacted to media attention, resulting in a patchwork of chemical-by-chemical bans, often without the proper scientific foundation to justify the chemical use restriction or outright ban.

The Technology Gap -- Both the public and private sectors lack the necessary investment in green chemistry for research, development, education, and technical assistance. Thus, no one in the United States has sufficiently focused on efforts to implement a successful green chemistry program.

The initial steps of the Green Chemistry Initiative required California Department of Toxic Substances Control (DTSC), along with other branches of Cal EPA, to compile comments and research on ways to fill these gaps, overall green chemistry policy goals, and potential policy options.  Based on this compilation process, Cal EPA identified the major hurdles that the Green Chemistry Initiative must overcome to be successful, including:

  •  Cradle-to-Cradle Design:  Cal EPA wanted to encourage or require California business to develop new products and processes that, at the end of their useful life, become raw materials for new products or nutrients for nature.  In other words, they must eliminate waste at the inception of the product.
  • Prevent Accidental Exposure Toxins: According to Cal EPA, California regulations should ensure that sufficient knowledge about the chemicals used in the manufacturing process is available so that hazardous substances are not inadvertently incorporated into products through the supply chain, illegal activity, or foreign manufacturers.
  • Prevent Exposure to Toxins by Design:  Cal EPA wanted California regulations to reduce or eliminate hazardous substances intentionally built into products to improve performance or reduce costs (including manufacturing, incidental, and waste costs).  Cal EPA stated that California manufacturers should not save money at the outset of a product, while requiring the consumers or California to pay high prices to protect their health or the environment at the end of the product’s useful lifecycle.

California’s Green Chemistry Initiative aims to fill the information and safety gaps and overcome these hurdles by implementing the following key elements: (a) collect accurate and comprehensive chemical information; (b) disseminate information on toxic chemicals to manufacturers and consumers; (c) empower consumers to make informed choices; (d) account for chemical toxicity and impacts in state procurement decisions; (e) include green chemistry principles in a future environmental education initiative; (f) forge strategic international partnerships that encourage the use of green chemistry; (g) strengthen consumer protection laws; and (h) expand California’s pollution prevention program. 

AB 1879 (Feuer) and SB 509 (Simitian)

AB 1879 (Feuer) expands the authority of the DTSC to regulate consumer products containing hazardous chemicals -- aka chemicals of concern -- including phthalates, mercury, lead, cadmium, arsenic, polybrominated dipenylethers (PBDEs), and hexavalent chromium.  It requires DTSC to set forth two sets of new regulations on or before January 1, 2011. 

First, DTSC must adopt regulations that establish a process to identify and prioritize chemical ingredients in consumer goods that may contain chemicals of concern.  These regulations must take into account the chemical’s volume in commerce in California, the potential for exposure to the chemical in a consumer product, and the chemical’s potential effects on sensitive populations, including children.

Second, DTSC must adopt regulations that establish a process for evaluating chemicals of concern in consumer products, and potential alternatives to such chemicals, so that DTSC may determine how best to limit exposure to or to reduce the dangers caused by such chemicals.  DTSC’s actions taken pursuant to these regulations may range from doing nothing, to banning or restricting the use of chemicals, to labeling requirements, or to requiring the manufacturer to manage the product at the end of its useful lifecycle.

In adopting the regulations required by AB 1879, DTSC will evaluate the priority chemicals and potential alternatives to such chemicals using specific criteria intended to characterize the lifecycle costs and benefits of each alternative, as well as multimedia (i.e., air, water and soil) impacts that may result from the production, use, and disposal of such consumer products.

SB 509 (Simitian) complements AB 1879.  It requires DTSC to create a Toxic Information Clearinghouse for the collection, maintenance, and distribution of specific chemical hazard traits and environmental and toxicological end-point data.  The Clearinghouse is supposed to be readily accessible to consumers, manufacturers, and lawmakers via the internet.

Benefits for Manufacturers and Consumers

These bills are designed to provide manufacturers and consumers with knowledge about the chemicals they use and buy.  Lawmakers hope that DTSC’s regulations under these bills will educate the public on chemicals present in consumer products, and by providing such education, create a demand for products manufactured with green chemistry principles.

As a result of these bills, manufacturers in California may learn the chemical compounds in the raw materials they use and whether such chemicals pose health risks to their employees and customers.  By utilizing this information, manufacturers may identify and remove toxic chemicals from their operations, improve worker safety, lower environmental and products liability and costs, and comply with the new European Union green chemistry regulations.  In addition, there is a growing market trend toward green business, so manufacturers should benefit in the marketplace as well.

These laws will notify consumers as to what chemicals are in the products they consume, as well as the health risks associated with such chemicals.  This knowledge is intended to help consumers purchase safer, greener products, and thereby protect their own health and the environment.  Consumers ultimately will have the benefit of more green products in the marketplace. 

Californians as a whole also will likely benefit from these laws and other green chemistry bills that will surely follow, as California’s natural resources will be better protected.  By requiring that all products are designed with a cradle-to-cradle approach, California hopes to ensure that less toxins are released into its environment and less waste is produced (products will be designed to be recycled at the end of their lifecycle). 

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