Am. Chemistry Council v. DTSC: Court Backs Product Listing Power

In American Chemistry Council v. Department of Toxic Substances Control, the California Court of Appeal addressed a challenge to regulations adopted under the Safer Consumer Products (SCP) program. This program was established under the California Green Chemistry Initiative to reduce toxic chemicals in consumer products. The American Chemistry Council (ACC) and other chemical industry groups challenged several aspects of the SCP regulations adopted by the Department of Toxic Substances Control (DTSC), alleging that the regulations exceeded statutory authority, were vague, and violated procedural requirements.

Background of the Regulatory Framework

In 2008, California enacted legislation known as the Green Chemistry Initiative, which led to Health and Safety Code sections 25251 through 25257. These statutes authorized DTSC to adopt regulations for identifying and prioritizing chemicals of concern in consumer products and to evaluate safer alternatives. In 2013, DTSC adopted SCP regulations that implemented a four-step regulatory process: (1) identification of candidate chemicals, (2) listing priority products, (3) alternatives analysis, and (4) regulatory response.

ACC filed a petition for writ of mandate challenging thirteen provisions of the SCP regulations. Key arguments included claims that DTSC exceeded its authority, failed to provide sufficient clarity, and did not comply with requirements under the Administrative Procedure Act (APA).

Court's Analysis of Authority and Clarity

The court reviewed whether DTSC had the authority to adopt the challenged regulations and whether the regulations provided sufficient clarity for compliance. ACC asserted that the SCP regulations improperly allowed DTSC to regulate products beyond its statutory scope, particularly with regard to regulatory responses and the scope of "priority products."

The court disagreed, affirming that the statutory language provided DTSC with broad authority to regulate hazardous chemicals in consumer products. It found that DTSC acted within the scope of Health and Safety Code section 25253, which permits DTSC to adopt regulations to "specify the process" for listing priority products and evaluating safer alternatives.

ACC also argued that the SCP regulations were unconstitutionally vague and failed to provide adequate notice to regulated entities. The court evaluated these claims under the standards of the APA and constitutional due process. It concluded that the regulations provided adequate clarity and flexibility, allowing DTSC to consider evolving scientific evidence and respond appropriately. The court noted that some level of discretion was inherent and necessary in environmental regulation.

Procedural Claims Under the APA

ACC further contended that DTSC violated the APA by failing to adequately respond to comments, improperly incorporating external documents by reference, and adopting regulations that were not sufficiently clear or necessary. The court rejected these claims. It held that DTSC had responded in good faith to public comments, adequately explained the rationale behind each regulatory provision, and properly incorporated scientific documents.

The court emphasized that regulatory agencies are not required to respond to every comment in detail, only to provide sufficient explanation for their choices. It also noted that agencies are permitted to incorporate external documents by reference when properly cited and reasonably available.

Final Ruling

The California Court of Appeal upheld the SCP regulations in their entirety. It concluded that DTSC had acted within its legislative authority, complied with procedural requirements, and provided sufficient clarity in the challenged regulations. As a result, ACC's petition for writ of mandate was denied.

Need Help Navigating Chemical Compliance?

If your business works with regulated chemicals or consumer products, our team at Whitcomb, Selinsky PC can help you understand and comply with state and federal environmental regulations. Learn how we assist clients with navigating the complexities of regulatory compliance across multiple industries.