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 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. The new provisions take effect in August 2018.
AHFA has developed a comprehensive Prop 65 Compliance Toolbox to assist companies with labeling programs.
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.
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)