Proposition65_faq.pub

Proposition 65 is a California law that can be both complex and challenging for industry to comply with and for consumers to understand. The following FAQ sheet has been prepared to provide some basic background information on this issue. Proposition 65, is formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Code, Chapter 6.6, Sections 25249.5 through 25249.13). This California law was enacted by voters as an environmental ballot initiative in November 1986. Proposition 65 imposes requirements on persons/businesses doing business in California that have products containing specific listed chemicals. All products sold or distributed within California containing a listed chemical must comply with Proposition 65 requirements for either risk exposure and/or label-ing. Proposition 65 requires the governor to publish a list of chemicals known to be carcinogens and/or reproductive toxicants, as determined by the State of California. This list, which is updated annually, designates the chemicals that are subject to this law’s requirements. Over 750 chemicals have been listed as of January 2006. Proposition 65 doesn’t prohibit the sale of products containing hazardous substances at any level. It does require that if these listed chemical substances are present in recognized risk levels that the product be properly labeled. Proposition 65 addresses exposure of these chemicals by: • drinking water discharges, • environmental exposures, • occupational exposures, and • consumer products. Proposition 65 requires businesses with ten or more employees to give a "clear and reasonable warn-ing" prior to exposing any person to a detectable amount of a chemical listed by the state as covered by this statute. The warning is also required on consumer products that may present potential risk to consumers. The intent of the warning is to allow consumers to make informed decisions about the products and services they purchase, and to enable other exposed persons to take whatever action they deem appropriate to protect themselves from exposures to these harmful chemicals. Bureau Veritas Consumer Products Services cps.bureauveritas.com The Proposition 65 list contains two types of chemicals: carcinogens, which can cause cancer, and reproductive toxicants, which can cause birth defects or other reproductive harm. The list contains a wide range of chemicals. Many of them are ingredients or components of common household products, such as ceramicware, alcoholic beverages and aspirin. Others may be industrial chemicals, dyes, or solvents used in dry cleaning, manufacturing, or construction, such as benzene, cadmium, perchloroethylene and formaldehyde. Still others may be byproducts of certain combustion processes, such as motor vehicle exhaust, airline exhaust, tobacco smoke and burning natural gas. Lead -- which is both a carcinogen and reproductive toxin -- has been one of the most often litigated chemicals. A chemical can be listed if it has been classified as a carcinogen or reproductive toxicant by one of the following organizations: U.S. Environmental Protection Agency; U.S. Food and Drug Administration; Na-tional Institute of Occupational Safety and Health; the National Toxicology Program; and the International Agency for Research on Cancer. A chemical can be listed if it is required to be labeled or identified as a carcinogen or reproductive toxicant by an agency of the state or federal government. Additionally, the governor appoints two independent committees of scientists and health professionals that can determine if a chemical should be listed, based on scientific evidence that definitively shows it to cause cancer or reproductive harm. When is a warning required under Proposition 65? A warning is required under Proposition 65 when a business knows or should know that there is a po-tential for persons to be exposed to hazardous chemicals as defined by the Act. Despite the broad word-ing of Proposition 65, not every hazardous substance triggers a notice and warning obligation pursuant to Proposition 65. The circumstances in which Proposition 65’s warning requirements do not apply to a potential exposure of a listed chemical are as follows: 1. Any chemical exposure for which federal law governs the warnings in a manner, which preempts 2. Any exposure which takes place less than twelve months after the chemical has first been placed 3. Any exposure which “poses no significant risk assuming lifetime exposure at the level in questions” for substances known to cause cancer or if “exposure will have no observable effect as-suming exposure at one thousand times the level in question for substances known to the state to cause reproductive toxicity.” 4. The exposure is to a naturally occurring chemical in food. However, the burden of proving the existence of one of these exceptions is on the defendant in a Proposition 65 case. This can be a very difficult and expensive defense to prove. Bureau Veritas Consumer Products Services cps.bureauveritas.com • For Carcinogens: "WARNING: Using this product will expose you to a chemical known to the State Toxins: "WARNING: Using this product will expose you to a chemical known to the State of California to cause birth defects or other reproductive harm." These warnings must be displayed in one or more of the following methods: • product labeling • retail outlet warnings • warning information system • The California Attorney General’s Office • Local city district Attorneys • Others including lawyers, environmentalists, and the public Note: The California Environmental Protection Agency's Office of Environmental Health Hazard Assess-ment (OEHHA) is designated by the Governor as the lead agency for Proposition 65 implementation but has no enforcement powers. What are the fines and penalties under Proposition 65? • Proposition 65 can impose a fine of $2500 per exposure per day. • The average settlement cost is approximately $50,000. • Fines and penalties are split between the state and the plaintiffs, however, plaintiffs can petition the • Settlements involving large groups of manufacturers and retailers have been known to total in the million plus dollar range. Examples are the fishing tackle, faucets and diaper cream settlements all of which totaled out over a million dollars. Q. 10 Where can I obtain additional information on Proposition 65? For additional information on Proposition 65, please refer to a document entitled "Plain Language Over-view of Proposition 65" on the Office of Environmental Health Hazard Assessment (OEHHA) website: http://www.oehha.ca.gov/prop65/background/index.html. Bureau Veritas Consumer Products Services cps.bureauveritas.com Jerry Miller, Team Leader, Regulatory Compliance, Information Resources Center Bureau Veritas Consumer Products Services, Inc. Tel: (716) 505-3653 Email: jerry.miller@us.bureauveritas.com Bureau Veritas Consumer Products Services, Inc. (“BVCPS”) provides the information in these frequently asked questions “as is.” In no event will BVCPS be liable for any loss in profits, business, use or data or for indirect, special, incidental, consequential or other damages of any kind in connection with these frequently asked questions. These frequently asked questions are a resource of general information and do not constitute the legal or other professional advice of BVCPS. Readers of these frequently asked questions should seek legal counsel regarding statutory or regulatory requirements discussed in these frequently asked questions. BVCPS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITH-OUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THESE FREQUENTLY ASKED QUESTIONS. Copyright 2007 Bureau Veritas Consumer Products Services, Inc. All Rights Reserved. Bureau Veritas Consumer Products Services

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