January 2014 – On November 21, 2013, California Governor Edmund G. Brown Jr. announced approval of the state’s new flammability standard for upholstered furniture, culminating a year-long effort to address growing concerns about consumer exposure to flame retardant chemicals.
California has proposed to “reform” Proposition 65 to reduce unnecessary litigation and to “require more useful information” for the public on what they are being exposed to and how they can protect themselves. If adopted, however, the reforms would bring the home furnishings industry little to no relief and, in fact, would require more complicated labeling.
The proposal, released by Governor Edmund Brown in May 2013, will be discussed during a public workshop on April 14. AHFA’s Vice President of Regulatory Affairs Bill Perdue will participate in the workshop and offer comments on behalf of the residential furniture industry.
Following the April workshop, the proposed changes will be revised, if necessary. Final adoption is expected in early summer 2015.
If adopted, the proposal will establish new minimum requirements for the warning labels manufacturers use to identify products containing chemicals on California’s Prop 65 list. In addition to the word “WARNING,” the labels will be required to carry the Globally Harmonized System (GHS) standard pictogram for toxic hazards for all consumer products other than food.
Further, the proposal will establish up to 12 “commonly-known” chemicals that will have to be mentioned by name in the text of the warning. Section 25605 of the proposed regulation currently includes acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1,4-Dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke and toluene. This list of chemicals “is not intended to be exhaustive and may be changed over time as the public becomes more familiar with the improved warning format,” states the Office of Environmental Health Hazard Assessment (OEHHA), which is the California agency that implements Prop 65 and oversees its enforcement.
The proposal also would require companies to include a link to a new OEHHA website on the warning label. The new website, not yet under development, is intended to provide the public access to more information, including information on additional chemicals, routes of possible exposure and, if applicable, any actions that individuals can take to reduce or avoid exposure.
The only “relief” to businesses attempting to comply with the controversial regulation is a proposed revision that would allow very small retailers (25 or fewer employees) the opportunity to fix warning violations within 14 days and avoid attack from bounty hunter law firms.
A press release from Governor Brown’s office last May stated that, since 2012, more than two dozen brick-and-mortar businesses in Southern California, including small restaurants and cafés, had been threatened with Prop 65 lawsuits for simply neglecting to have a warning sign about beer, wine or chemicals that result from the natural process of cooking food. Some businesses, the release says, have paid settlements of $5,000 or more for failing to post a $20 sign or for posting a sign that was one inch too small.
The proposed “reforms” also lay the burden of populating the OEHHA website on manufacturers. A new provision would require companies to provide OEHHA with the following information for any chemical for which they provide a Prop 65 warning: