By DARIO FROMMER

With the stroke of a pen, California may be about to revolutionize the way dangerous chemicals and processes are regulated in the United States. Gov. Arnold Schwarzenegger has signed into law the nation’s first Green Chemistry program, which seeks to protect people and the environment from dangerous chemicals by focusing on the design stage of consumer products.

The ambitious new law empowers the Department of Toxic Substances Control to take a wide variety of actions to regulate chemicals of concern in consumer products including the imposition of restrictions or bans on use of a chemical, labeling requirements, and recycling or disposal regimens. It provides a process for consideration of alternatives to use for chemicals of concern in the design of products and mandates a “multimedia lifecycle evaluation” on any alternative’s potential effect on air and water quality, climate change and worker safety to ensure that new processes don’t create new problems. It also establishes a clearinghouse for toxicological data on chemicals used in consumer products.

California’s Green Chemistry Initiative signals an important shift to a more comprehensive science-based approach to regulation of chemicals of concern, resulting in a more objective and business-inclusive process. For years, frustrated environmental activists have bypassed slow-moving federal agencies and asked state legislatures to take action on chemicals of concern.

For legislators sitting on the dais, passing judgment on whether to ban or restrict chemicals in consumer products can be a very difficult task. Without a background in toxicology, it is virtually impossible to evaluate the risk that chemicals present to humans or the environment. Sometimes, emotion, not science, rules decision-making. And sometimes, politics trumps good science.

Both business and environmental activists have been frustrated by California’s current erratic patchwork of regulation on chemicals of concern. For example, in recent years, California has mandated reporting of potentially carcinogenic ingredients in cosmetics and toiletries, placed strict limitations on lead content in jewelry and banned the use of phthalates in baby toys. At the same time, the state Legislature defeated bills banning lead in lipstick and toys, perfluorinated chemicals in food packaging and the use of biphenyl in children’s products.

California’s Green Chemistry program may be a “win-win” for consumers, the environment and the sustained success of companies who manufacture affected products. For manufacturers who have grown weary of the chemical-by-chemical approach taken by the California Legislature, the Green Chemistry construct allows for presentation of data, and deliberations over risk and alternatives in a more objective, and less politically charged, forum. For activists, Green Chemistry offers a comprehensive approach to risk assessment, to regulation of chemicals of concern, and to identification of potential chemical alternatives that are less harmful to people and the environment.

Broad impact

With such a broad mandate in its inaugural stage, it is difficult to predict just what the Department of Toxic Substances Control will do, but Green Chemistry has the potential to affect a wide range of consumer products and processes. In recent years, manufacturers of toys, baby products, children’s clothes, bedding and food packaging have come under fire. Here in Los Angeles County, more than 15,000 businesses manufacture consumer goods and food products. Smart companies are engaging in the department’s early discussions and workshops, and closely monitoring its work on implementation of the new program.

Since the new laws took effect Jan. 1, the department has focused on appointing members to a Green Ribbon Advisory Panel and discussion of regulations on identifying chemicals of concern. The second stage of the process will focus on assessing the viability of alternatives to chemicals of concern in product design. Potentially regulated entities would be well advised to closely monitor the activities of the department and get engaged early in the process. At each stage, companies will have the opportunity to weigh in on the technical and procedural aspects of regulations that the department is required to adopt by 2011. Affected entities may have an impact on outcomes by being prepared to submit independent research on chemicals under discussion and by suggesting alternative approaches to chemicals of concern in products. Equally important, businesses should monitor new developments and stay engaged throughout the review process.

It’s too early to tell if the Obama administration will follow California’s example. However, it is clear that the feds and other states will be closely monitoring California’s Green Chemistry effort as an integral new sector of policy. Already, Gov. Jennifer Granholm of Michigan has signed an executive order on Green Chemistry, and the state of Maine has developed its own comprehensive program.

But for now, all eyes will be on the Golden State’s Green Chemistry revolution and how well it protects consumers, our environment and our state’s industry.

Dario Frommer is a partner at Mayer Brown LLP in Los Angeles and a former majority leader of the California Assembly.