According to the California Office of the Attorney General, 69% of Prop 65 settlement awards in 2012 went to attorneys’ fees and costs.  Producers have responded accordingly, and companies now slap Prop 65 warnings on just about every product in an effort to not be sued.  This fact severely undermines the usefulness of the warnings.

PROP. 65

A toxicologist retained by several hotel chains identified the following as sources of potential Prop. 65 exposures in the hotel context:

• Secondhand tobacco smoke.

• Cleaning supplies and related activities.

• On-site construction.

• Furnishings, hardware, and electrical Components, furniture, window

treatment, locks, keys, electrical equipment, and carpeting.

• Personal hygiene and medical supplies, including soaps, shampoos, and

first aid supplies. Also, the hotel water supply system may add lead to

water from the faucets and other plumbing components.

• Combustion sources, including automobile engines, gas stoves,

fireplaces and candles.

• Office and art supplies and equipment, including carbonless paper,

marking pens, copier machine chemicals, glues, crayons and paints.

Prop. 65

Sources of potential Prop. 65 exposures continued …

• Landscaping supplies and pesticide treatment, including fertilizers,

soil amendments, and pesticides.

• Food and beverage service, including alcoholic beverages, and broiled

and barbecued foods.

• Transportation-related exposures, including motor fuels and engine

exhaust.

• Equipment and facility maintenance, including motor oil changes,

carburetor cleaning, battery replacement, and facility repairs.

• Retail Sales.

• Recreation facilities, swimming pools, hot tubs and beaches,

including beach sand, which can contain quartz sand, a form of crystalline silica.24

Prop. 65

Based on publicly available information, the retailers, distributors and/or manufacturers of the example within the category or type of product are also provided below.

I believe and allege that the sale of the offending products also has occurred without the requisite Proposition 65 "clear and reasonable warnings“ at one or more locations and/or via other means including, but not limited to, transactions made over-the-counter, business-to-business, through the internet and/or via a catalog by the Violator and other retailers and distributors of the manufacturer.

Prop. 65

AG NUMBER 2013-00575NOTICE PDF: 2013-00575.PDFDATE FILED: 06/12/2013NOTICING PARTY: THE PUBLIC INTEREST ALLIANCE LLC

ALLEGED VIOLATORS: SUSAN POSNICK COSMETICS; PROCTOR & GAMBLE/COVER GIRL; REVLON HOLDINGS, INC.; ALMAY, INC./REVLON HOLDINGS, INC.; PHYSICIANS FORMULA; IREDALE MINERAL COSMETICS, LTD; COLOR SCIENCE, INC.; BARE ESCENTUALS BEAUTY, INC.; L'OREAL USA S/D, INC.; MAYBELLINE, INC.; PETER THOMAS ROTH LABS, LLC; ELIZABETH ARDEN, INC.; LAURA MERCIER/GURWITHC PRODUCTS LLC; NEUTRAGENA CORPORATION; SMASHBOX BEAUTY COSMETICS, INC.; NARS COSMETICS, INC.; AHAVA NORTH AMERICA, LLC; KORRES/JOHNSON & JOHNSON; AMAZING COSMETICS, INC.; W3LL PEOPLE; E.L.F./JA COSMETICS CORP.; TRISH MCEVOY LTD; CHRISTIAN DIOR, INC.; LABELLA DONNA, LTD; TRUE COSMETICS, LLC; ESTEE LAUDER, INC.; EMINENCE ORGANIC SKIN CARE; TARTE INC.; GUERLAIN, INC.; GLOPROFESSIONAL; STILA COSMETICS; SUNDAY RILEY; ILLAMASQUA LTD.; BENEFIT SAN FRANCISCO; URBAN DECAY COSMETICS, LLC; DOLCE & GABBANA USA INC.; ANASTASIA BEVERLY HILLS; BECCA, INC.; KAT VON D, INC.; LORAC COSMETICS, INC.; CHARLOTTE RONSON COSMETICS; PUR MINERALS, INC.; DR. HAUSCHKA SKIN CARE; JOSIE MARAN COSMETICS, LLC; TOO FACED COSMETICS, LLC; ARCONA, INC.; INNOVATIVE SKINCARE; NUXE; COSMECEUTECHS, LLC; XEN PRODUCTS AND MARKETING, INC.; CARGO COSMETICS CORPORATION; NAPOLEAN PERDIS COSMETICS, INC.; VINCENT LONGO COSMETICS, INC.; CLARINS USA, INC.; DERMAQUEST, INC.; INDIAN EARTH COSMETICS; DUWOP COSMETICS/LOLA COSMETICS; DIANNE BRILL COSMETICS; YVES SAINT LAURENT AMERICA, INC.; BOBBI BROWN PROFESSIONAL COSMETICS SERVICE, INC.

CHEMICAL: TITANIUM DIOXIDE (AIRBORNE, UNBOUND PARTICLES OF RESPIRABLE SIZE)

SOURCE: PERSONAL CARE PRODUCTS (COSMETICS, SUNSCREEN, SKINCARE PRODUCTS) IN POWDER FORM

COMPLAINT (0)   SETTLEMENT (0)   JUDGMENT (0)

Prop. 65

78 notices on vinyl in 2010 (9.8%)

51 notices on vinyl in 2011 (4.7%)

166 notices on vinyl in 2012 (17%)

90 notices on vinyl in 2013 (6.9%)

Prop. 65

AG Number 2013-00238

Notice PDF: 2013-00238.pdfDate Filed: 03/01/2013Noticing Party: Center for Environmental Health

Alleged Violators: Elegant Footwear, Inc.; J.C. Dossier; Pinky Footwear, Inc.; Twin Tiger Footwear, Inc.

Chemical: Lead

Source: Footwear Made With Leather, Vinyl or Imitation Leather Materials

Prop. 65

The vast majority of Prop 65 lawsuits and alleged violations only involve a handful of chemicals, including acrylamide, cadmium, lead and phthalates (DEHP, DBP, BBP, DIDP, DnHP).

For that reason, it is notable when a new trend emerges with Prop 65 notices.     

Prop. 65

One recent trend is the large number of Prop 65 "60 Day Notices" that have been issued by plaintiffs concerning the chemical Tris(1,3-dichloro-2-propyl) phosphate or "TDCPP.“

In fact, in the first six months of 2013, Prop 65 plaintiffs have issued more than 213 notices to numerous

manufacturers and retailers regarding alleged violations

of Prop 65 for

TDCPP in products.

The products listed in these notices include foam mattress toppers, foam-cushioned upholstered furniture, foam mats for children and infants, and foam massage cushions. 

Prop. 65

AG NUMBER 2013-00610NOTICE PDF: 2013-00610.PDFDATE FILED: 06/19/2013NOTICING PARTY: LAURENCE VINOCUR

ALLEGED VIOLATORS: TRUE DESIGNS INC; COSTCO WHOLESALE CORPORATION; BEST BUY CO., INC.

CHEMICAL: DI(2-ETHYLHEXYL)PHTHALATE (DEHP), TRIS(1,3-DICHLORO-2-PROPYL) PHOSPHATE (TDCPP)

SOURCE:UPHOLSTERED OFFICE/TASK CHAIRS WITH FOAM PADDING CONTAINING TRIS(1,3-DICHLORO-2-PROPYL) PHOSPHATE, UPHOLSTERED RECLINERS WITH FOAM PADDING CONTAINING TRIS(1,3-DICHLORO-2-PROPYL) PHOSPHATE, RECLINERS WITH VINYL/PVC UPHOLSTERY CONTAINING DI(2-ETHYLHEXYL)PHTHALATE

COMPLAINT (0)   SETTLEMENT (0)   JUDGMENT (0)

Prop. 65

• What does this mean? How can your company “comply” with Prop 65?

• Perhaps the easiest way to comply would be to no longer sell your product in California.

If your products could make their way to California

– on store shelves or through internet sales –Proposition 65 affects you.

Prop. 65

Another way to comply is to keep all chemicals in your products below the so-called “safe harbor” level that requires a Proposition 65 warning. Unfortunately, those levels are hard to determine. Proposition 65 compliance is based on how much of a chemical the average consumer is exposed to, not on how much is in the product.

The law requires the defendant to prove that the average consumer is not exposed to more than the allowable amount of the chemical, based on scientific studies such as behavioral and toxicology tests.

Prop. 65

Proposition 65’s content standards are set in litigation that applies to only the litigants in a particular case, not in regulations that apply to everyone. Some settlements set content standards that are even lower than the national Consumer Product Safety Improvement Act (CPSIA) standards.

For example, a common settlement standard is 200 ppm (parts per million) for lead in vinyl components. 

Remember, though, that Proposition 65 is a warning law, not a ban.

Prop. 65

If your product is made from materials that contain traces of Proposition 65 chemicals, you may want to consider placing a warning label on your product that is conspicuous to the consumer at the time of purchase as a possible way to comply with Proposition 65.

The warning label, as long as it complies with the regulations under Prop 65, can also protect your company and products if your product contains a chemical that is listed in the future.

Prop. 65

The Warning Must Be “Conspicuous”

The Warning Must Be “Clear”The Warning Must Be “Reasonable”

Note – Labels would likely appear on all of your product, regardless

of whether the product was ultimately sold in California. That

means your product could contain the above warning whether sold

in Ohio or California. 

www.oehha.ca.gov/prop65http://www.oehha.ca.gov/prop65/law/pdf_zip/RegsArt6.pdf.

Prop. 65

Prop. 65 UpdateAS OF 8/02/13

FEDERAL GOVERNMENT STEPPING IN ON PROP 65:

CHEMICAL SAFETY IMPROVEMENT ACT

Although the 2013 version of this bill was just introduced this past May, it

has been in the works for a few years. The current law gives the EPA

relatively little oversight for approving or restricting products, while

leaving much of the work to individual states. Private industry has

sought a more uniform framework. The proposed bill would create a

clearer federal framework of guidelines and restrictions. As things

stand, the EPA can call for safety testing only after evidence surfaces

demonstrating a chemical may be dangerous. As a result, the EPA has

only been able to require testing for roughly 200 of the more than

84,000 chemicals currently registered in the United States, and has

been able to ban only five dangerous substances since the law was

first enacted in 1976.

Prop. 65 Update

David Vitter (R. LA) agreed to back new authority for the EPA to screen all

chemicals for safety. But in exchange, he insisted on provisions, backed by

the chemical industry that could prohibit states from adding regulations of

their own. The committee hearing on this chemical safety bill begins today.

Although the plan is bipartisan, political jostling is to be expected.

The LA Times (August 2, 2013) presents the California perspective as follows:

“But the worst part of the bill is the provision that would preempt

state laws such as California's that have been protecting the

public in the absence of meaningful EPA regulation. Under the bill,

once the EPA identified a chemical as being a priority for possible

regulation, the chemical would be considered part of federal

jurisdiction, and any state laws governing it would cease to have

any authority. The EPA could then leave the chemical untested

and unregulated for years. It's a gift to industry.”

The CA Governor Edmund G. Brown Jr. Proposal for Changes The U.S. government has the power to block the laws of California or any other state if the statutes have an impact on interstate commerce or otherwise interfere with federal authority.The administration, stakeholders and the Legislature will discuss reforms to:

• Cap or limit attorney’s fees in Proposition 65 cases.• Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins.• Require greater disclosure of plaintiff’s information.• Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties.• Provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm.• Require more useful information to the public on what they are being exposed to and how they can protect themselves.

Prop. 65 Update

Revision to the List of Chemicals in 2013

Prop. 65 Update

ChemicalType of Toxicity

Listing Mechanis

mCAS No.

Date Listed

Emissions from combustion of coal

cancer AB --- 7-Aug-13

Hydrogen cyanide (HCN) and cyanide salts (CN salts)

male AB --- 5-Jul-13

Clomiphene citrate cancer FR 50-41-9 24-May-13

Bisphenol A (BPA) Delisted April 19, 2013

developmental

AB 80-05-7 11-Apr-13

C.I. Disperse Yellow 3 cancer SQE 2832-40-8

8-Feb-13

2,6-Dimethyl-N-nitrosomorpholine (DMNM)

cancer SQE 1456-28-6

8-Feb-13

1. A requirement that a warning inform an individual that he or she will be exposed to a listed chemical.

2. The minimum information that must be included in all warnings, including the health effect (cancer, male reproductive toxicity, female reproductive toxicity, developmental toxicity) for which the chemical(s) involved in the exposure was listed; information on how a person will be exposed; and, where applicable, simple information (such as washing hands) on how to avoid or reduce an exposure.

3. Approved warning methods and content for use by product manufacturers and retailers regarding exposures to listed chemicals from consumer products, including products sold at retail establishments and products sold via the internet. These approved methods may include alternatives to on-product warnings.

4. Approved warning methods and content for use by manufacturers and retailers regarding exposures to listed chemicals in foods, including foods sold at retail establishments and food products sold via the internet. These approved methods may include alternatives to on-product warnings.

AGENDA FOR THE OFFICE OFENVIRONMENTAL HEALTHHAZARD ASSESSMENT (OEHHA)WORKSHOP 7/30/13)

Prop. 65 Update

5. Approved warning methods and content for environmental exposures, including exposures an individual may experience when entering or spending time in an area where listed chemicals are present. OEHHA intends to provide specific warning language and methods for some common environmental scenarios, such as parking structures, food courts, hotels, apartments and other businesses, to provide greater clarity and certainty where appropriate.

6. Requirements and approved methods for providing additional contextual information to persons concerning exposures to listed chemicals. Such information would allow individuals to learn more about some or all of the specific chemicals involved in the exposure, and the applicability of other state and federal laws to these exposures. This information would not have to be provided prior to the exposure, but instead would have to be available to the public on a web site or other generally accessible location.

7. Reasonable transition times for businesses to come into compliance with this regulation and recognition of existing warnings that are included in court-approved settlements.

AGENDA CONTINUED

Prop. 65 Update

• Effective August 7, 2013, the Office of Environmental Health Hazard Assessment (OEHHA) is adding emissions from combustion of coal to the list of chemicals known to the State to cause cancer for purposes of Proposition 65.

OEHHA HAS RECENTLY LISTED A NEW CHEMICAL:

Prop. 65 Update

WARNING: Breathing the air in this parking garage will expose you to car and truck exhaust that contain chemicals known to cause cancer, birth defects and other harm to a developing baby. Do not stay in the area longer than necessary.

For more information go to: www.oehha.ca.gov/warnings

OEHHA Example – Parking Garage

Prop. 65 UpdateSTARBUCKS

Prop. 65 UpdateMcDONALD’S

SPRADLING INTERNATIONAL INC.

Prop. 65 Update

CALIFORNIA NEW CAR DEALERS ASSOCIATION

WALT DISNEYLAND RESORTS

The Warning Must Be “Conspicuous”

The Warning Must Be “Clear”The Warning Must Be “Reasonable”

Note – Labels would likely appear on all of your product, regardless

of whether the product was ultimately sold in California. That

means your product could contain the above warning whether sold

in Ohio or California. 

www.oehha.ca.gov/prop65http://www.oehha.ca.gov/prop65/law/pdf_zip/RegsArt6.pdf.

Prop. 65