The Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly referred to as Proposition 65, was voted into law more than 30 years ago and it is still as controversial today as it was then.
The goal of the regulation is to monitor and limit the use of substances and chemicals thought to be toxic, cause cancer or cause reproductive issues. It was originally introduced to voters as a way to give them information to help them make decisions about the products they use.
Understanding which substances are listed is important, but for anyone doing business in California, understanding what you need to do to be in compliance is even more important.
California does not outright ban the use of substances on the official Proposition 65 chemical list. There are safe harbor levels for many listed substances. But if exposure to products does not fall below those levels, they need to have a warning label attached to be compliant.
The chemical list is maintained by the Office of Environmental Health Hazard Assessment (OEHHA). There are 4 mechanisms in place which help determine the chemicals and substances that should be added to the Proposition 65 chemical list.
If the following organizations deem a chemical or substance to be a possible carcinogen and/or to have reproductive toxicity, OEHHA takes note and begins the process of review to potentially add it to the Prop 65 list:
- The California Labor Code
- A State’s Qualified Expert
- Authoritative Bodies Mechanism
- The US Food and Drug Administration
It is the labeling rule within the regulation that requires a warning label be placed on products which “knowingly and intentionally” expose consumers to any of the substances or chemicals on the Prop 65 list that are above the safe harbor levels. There must be a “clear and reasonable” warning label that directly says a product contains chemicals known to cause cancer and/or reproductive issues.
This has become one of the more controversial and litigious components of the law. It is standard practice for businesses to place warning signs in their establishments, even if they are unsure if they actually have ‘listed’ components on the premises, because lawsuits over this regulation have become a cottage industry. It may be something as innocuous as a chair in a restaurant, but if it has a component on it that was made with one of the substances on the Prop 65 list, they are a target for legal action.
Most state and federal environmental laws are enforced by the government. It is typically a state or federal official who initiates lawsuits for non-compliance of environmental laws, on behalf of the people of the state. But in California, the rule is different. Any citizen can file a lawsuit ‘in the public interest’ and claim a business is not complying with Prop 65. Since there is no specific language in the statute that defines what an ‘infraction’ is, it is left up to the courts to decide if a business gave ‘clear and reasonable’ warning and if it was ‘prior to exposure’. If a business is found to be non-compliant the penalty can be as much as $2,500 per day, per infraction. Multiple infractions can turn into major cost.
If a business does not have the proper warnings displayed on their product or property, they open themselves up to non-compliance lawsuits. Place of manufacture does not matter. The law governs the article, regardless of where it originated.
It can be a difficult and uphill landscape to navigate.
To help alleviate some of these concerns, Teknor Apex has developed a family of flexible general purpose PVC compounds, formulated specifically with Prop 65 compliance in mind.
Apex® 2324A2 series compounds are formulated without any of the substances that are on the Prop 65 list. With hardness ranging from 55 to 90 Shore A, these compounds are suitable for use in a variety of applications including office furniture, point of purchase displays, marine products, lawn and garden, sports and recreation, weather-stripping, door sweeps, flexible glazing and interior/exterior profiles. They are opaque compounds that extrude well across a wide temperature range, and in some cases are co-extrudable with rigid PVC. Fungus resistance and UV protection options which do not compromise compliance or performance are available as well.
If you are in need of PVC compounds that comply with Proposition 65, or if you would like assistance complying with the myriad of other regulatory and chemical lists around the globe, Teknor Apex can assist you in finding the best compound for your applications.
