California Proposition 65 Toolbox
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In 1986, California voters approved the Safe Drinking Water and Toxic Enforcement Act to address growing concerns about toxic chemicals in consumer products and in the environment. Better known as Proposition 65, the law requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. The list must be updated once a year, and it now contains nearly 900 chemicals.
The Office of Environment Health Hazard Assessment (OEHHA) administers Prop 65 and evaluates all currently available scientific information to determine which substances should be placed on the Prop 65 list of “toxic” chemicals.
Products containing any of the chemicals on the Prop 65 list must carry a “clear and reasonable” warning to notify consumers that a listed chemical is present in the product. This warning must be made available to the consumer prior to exposure. The warning must be provided unless the exposure is low enough to pose no significant risk of cancer or birth defects or other reproductive harm. However, OEHHA has established these “No Significant Risk Level” exposure thresholds for only about a third of the listed chemicals.
Thirty years after its enactment, this California law remains a challenge for home furnishings companies. In 2011, when OEHHA listed a common flame retardant chemical used in upholstered furniture at that time, Tris (1, 3-dichloro-2-propyl) phosphate or “TDCPP,” hundreds of manufacturers were issued notices of violation for failing to warn consumers. Over the years, Prop 65 has spawned its own cottage industry of professional plaintiffs, since the law allows these “citizen enforcers” to collect settlement fees and attorney fees for filing cases. In 2011, the average cost for a manufacturer to settle a Prop 65 notice of violation was $65,000.
Last year OEHHA overhauled the “clear and reasonable warning” section of Proposition 65. Therefore, companies shipping products into the state of California need to update their labeling practices or risk becoming an enforcement target.
AUGUST 2016 WARNING LANGUAGE UPDATE
On August 30, 2016, California’s Office of Administrative Law approved new Prop 65 warning regulations promulgated by OEHHA. The new warning regulations do not change the fundamental legal principle that all companies in the chain of commerce are liable for Prop 65 violations. But these new regulations do change WHO in the chain of commerce has the primary responsibility for the implementation of Prop 65 warnings.
AHFA has produced a white paper explaining the new allocation of warning responsibilities between furniture suppliers and furniture retailers. This document is available to AHFA members only.
The new regulations also change the content of safe harbor warnings for furniture products. Sample warnings are included in the white paper referenced above.
A Prop 65 warning on a furniture product is deemed to comply with the law only if (1) the correct safe harbor language is used in the warning; (2) the warning is affixed to the product in the same manner as other warnings or consumer information (for example, on the law label or manufacturer’s label); and (3) a notice is displayed at each retail public entrance or point of display OR a notice is printed or stamped on each receipt. Manufacturers/suppliers must notify their retail dealers that these warnings are required AND “provide the materials with the product when it is delivered to the retail seller.”
The availability of a specific safe harbor for furniture products is a direct result of AHFA’s advocacy on behalf of the home furnishings industry.
This section includes links to documents that help AHFA member companies meet the challenges of complying with Prop 65.(Members only; log in to access.)
Understanding the New Prop 65 Furniture Safe Harbor
August 30, 2017
Introduction to AHFA’s Prop 65 Workbook
August 23, 2017
Implementation of the New Prop 65 Labeling Requirements
August 16, 2017
New Prop 65 Clear & Reasonable Warning Requirements
September 15, 2016
From the September 2016 AHFA Regulatory Summit, this presentation provides a complete overview of new regulations covering “clear and reasonable” warnings under Prop 65. Presenter Amy Lally, a partner in the Los Angeles law offices of Sidley LLP, includes an explanation of the new “safe harbor” warning for residential furniture.
Consumers inside California have become accustomed to Prop 65 warning labels, which have popped up on everything from computers and cosmetics to coffee and clothing since 1976 when the Safe Drinking Water and Toxic Enforcement Act – better known as “Prop 65” – was passed.
Outside California, however, seeing a Prop 65 warning on your new sofa or table is cause for alarm. To help explain the warning to consumers, AHFA has developed a one-page fact sheet.
Among the most common chemicals resulting in a Prop 65 warning on residential furniture is formaldehyde, which may be an ingredient in the glue used to produce components in some furniture. Although formaldehyde emissions from wood products are subject to a stringent federal regulation, some manufacturers provide a Prop 65 formaldehyde warning to avoid the testing costs necessary to prove formaldehyde is within the “no significant risk” level.