Understanding The Basics Of Proposition 65

By Melvin L. Magadia (Published June 7, 2011)

Proposition 65 or popularly known as the California Safe Drinking Water and Toxic Enforcement Act, was an initiative voted upon by majority of California residents as a result of their growing concerns about exposure to toxic chemicals. Eventually it became known as “the toxic tort of the 21st century.” Proposition 65 requires the State to provide a list of chemicals known to result to cancer or birth defects or other reproductive risks. The law further states that such list should be updated at least once a year. Since the first publication in 1987, the list has included around 800 chemicals.

The main agency charged with administration of Proposition 65 is the Office of Environmental Health Hazard Assessment (OEHHA). The OEHHA shall also be responsible for the evaluation of all currently available scientific information on substances considered for inclusion on the Proposition 65 list.

Implementing the Law

The law requires businesses to issue warning notices concerning the amount of chemical compounds that their products or inks contain. The amount is usually limited to minimal amounts, if not zero. A warning notice is not necessary if the business deems that exposure to these chemicals is low enough to pose no significant cancer risk or is significantly lower than observable levels to bring about birth defects or other reproductive harm.

Failure to issue warning labels or eliminate listed compounds from their products and inks will subject the company to a maximum penalty of $2,500 for every violation per day. If the so-called “offensive products” enter California, all agents will be held liable.

Prohibition 65 requires businesses to issue a “clear and reasonable” warning before knowingly and intentionally exposing customers to a listed chemical. The notice can be issued through several means such as consumer product labels, posting signs at the office premises, or issuing warnings in a newspaper. Upon listing of the chemical, businesses would be given one year to comply with the warning provision.

In addition, the law also prohibits California-based businesses from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is entered into the list, businesses will be given 20 months to comply with this provision.

Businesses with less than 10 employees as well as government agencies are exempted from issuing warnings as well as prohibitions on discharges into drinking water sources.

Procedure For Adding A Chemical To The List

So how does the Office of Environmental Health Hazard Assessment (OEHHA) determine which chemicals will be added to the list? There are four principal methods a chemical is added to the Proposition 65 list. First, there should be a clear indication that the chemical causes cancer or birth defects as determined by either two independent committees of scientists or health professionals. The decision should be based on the most recent scientific data available. The committee members are appointed by the Governor and are designated as the “State’s Qualified Experts” for chemical evaluation under Proposition 65.

Next, for a chemical to be added to the list it should be confirmed as causing cancer or birth defects or other reproductive harm by organizations designated as an “authoritative body” by the CIC or DART identification committee. The following agencies have been designated as authoritative: the U.S. Environmental Protection Agency, U.S. Food and Drug Administration (U.S. FDA), National Institute for Occupational Safety and Health, National Toxicology Program, and International Agency for Research on Cancer.

Third, an agency of the state or Federal government calls for its labeling or identification as causing cancer or birth defects or other reproductive harm. Most prescription drugs are listed in this manner by the US Food and Drug Administration.

Finally, the chemical should meet certain scientific criteria and should be identified in the California Labor Code as causing cancer or birth defects or other reproductive harm.

Relation To Promotional Products Industry

Under Proposition 65, it is the job of a supplier to have knowledge about what their promotional products and inks contain to satisfy what the law provides. Distributors should inform suppliers if their products will be shipped to California. It will then be up to the distributor to decide whether to place warning notices or choose an alternative decorating method.

Promotional products companies based in California should always see to it that they comply with Proposition 65 provisions to avoid being issued a Notice of Violation and from the hassle of court litigation. Here are some tips on how they can keep their business Proposition 65-compliant.

Suppliers

• Have your water bottles tested at a private California laboratory to ensure their compliance with Proposition 65 provisions.

• Ask paint suppliers concerning the composition of the ink and have it written in black or white so you are informed.

• If the product has “unacceptable” amounts of listed chemicals, put warning labels on the product or placards for products that will be shipped to California.

• Devise an alternative ink or product that complies with Prop 65 standards.

• Seek legal advice from Prop 65 lawyers to prepare defensive strategies before litigation hits.

Distributors

• Coordinate with suppliers regarding the chemicals contained in their products and inks to ensure they meet Prop 65 standards.

• Establish close communication with end-buyer clients and suppliers to determine whether products will be ultimately delivered to parts or the entire California.

• Seek legal advice from Prop 65 lawyers to prepare defensive strategies before litigation hits.

Accomplishments of Proposition 65

Since its enactment in 1986, Proposition has provided California residents with useful knowledge for reducing their exposure to listed chemicals that may not be regulated by other State of Federal laws. At the same time, it has increased the awareness of the public regarding the adverse effects of exposure to listed chemicals.

By requiring them to issue warning notices, Proposition 65 has given manufacturers an incentive to remove listed chemicals from their products. Trichloroethylene is no longer added in most correction fluids. Manufacturers of reformulated paint strippers have removed the carcinogen methylene chloride and toluene. Lead has also been removed in ceramic tablewares and wineries as well as in wine bottle foil caps.

References:

Proposition 65 in Plain Language

Indecent Proposition

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