In 1986, California voters approved the Safe Drinking Water and Toxic Enforcement Act to address growing concerns about toxic chemicals in consumer products and 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 now contains over 800 chemicals, and more are added every year.
The Office of Environmental Health Hazard Assessment (OEHHA) administers Prop 65 and determines which chemicals are added to the list. Any product offered for sale in California that contains one of the Prop 65 chemicals must carry a warning that notifies consumers about the presence of the listed chemical.
Prop 65 does not ban the use of chemicals that it lists as “toxic,” nor does it regulate the amount of any given chemical in products. Its purpose is to alert consumers to the presence of chemicals in products.
In November 2015, OEHHA published a notice of proposed rulemaking to repeal and add a new Article 6 to Prop 65 to more clearly define what constitutes a “clear and reasonable warning.”
Following the 2015 notice, AHFA submitted written comments and also participated in a public hearing on the proposed new regulation. In August 2016, OEHHA released the final amendment, and the new provisions took effect in August 2018.
Directly tied to AHFA’s advocacy on this regulation was OEHHA’s adoption of a furniture-specific “safe harbor” warning. This provision stipulates that a separate Prop 65 label is not required for residential furniture. Instead, manufacturers may include the Prop 65 warning on an existing product label, such as the manufacturing label for wood products and the flammability label for upholstered products.
The furniture label needs to name one specific chemical that is listed by OEHHA as a carcinogen or a reproductive toxicant.
To help member companies determine their compliance obligations under Prop 65, AHFA has developed a workbook that includes the top 20 OEHHA-listed chemicals considered most likely to be in residential furniture. The Alliance hired Bureau Veritas and Intrinsik to conduct exposure assessments for these chemicals. The workbook contains the results of the research, testing and technical analysis. The workbook is downloadable from AHFA’s website.
AHFA also commissioned Amy P. Lally of Sidley Austin LLP, considered California’s foremost legal experts on Prop 65, to develop an overview of the requirements outlined in the new furniture “safe harbor” warning. This furniture safe harbor is unique among all Prop 65 warnings, because it requires retail sellers to share in the responsibility of alerting consumers to the presence of chemicals in furniture products. Available exclusively to AHFA members, Lally’s “white paper” provides authoritative guidance on the content of the required warning, a checklist of topics to review with retail partners, sample labels and a sample notice letter to use with retailers.
As the new regulation takes effect in 2018, AHFA continues providing members with unparalleled legal support and expert advice on Prop 65 compliance issues. (July 2018)
AHFA has developed a comprehensive Prop 65 Compliance Toolbox to assist companies with labeling programs.