60-Day Notice

Excerpted from full article at Prop 65 Clearinghouse:

Tris itself was listed as a Prop. 65 carcinogen in October of 2011 over the objections of the chemical industry. The warning requirement for products containing Tris became effective in October of last year. OEHHA subsequently established a safe harbor level (No Significant Risk Level) for Tris exposure of 5.4 micrograms per day on October 9, 2012 [see OEHHA Proposes NSRL for TDCPP, July 2, 2012].

The Chanler Group, on behalf of its Prop. 65 clients, immediately began testing furniture after the October 2011 listing. Although furniture industry representatives warned members of the likelihood of upcoming Prop. 65 enforcement actions, the laboratory hired by the Chanler Group confirmed the presence of Tris in numerous furniture products after the effective date of the warning requirement. The initial set of eight 60-day intent-to-sue notices targeting Tris were sent out last year.

The number of these notices has dramatically escalated in 2013 with the Attorney General's office stating that there have been 178 such notices sent as of April 19. The vast majority of these notices have been issued by The Chanler Group attorneys on behalf of plaintiffs, Laurence Vinocur, Peter Englander, and John Moore (search Prop. 65 Clearinghouse Case database for complete list of cases). link to source

Assembly Bill 227, an amendment to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as Proposition 65), was passed by the California Assembly last Friday and is now headed for the California Senate.  If the bill passes the Senate and Governor Edmund G. (“Jerry”) Brown signs it, it will become law.  The bill was introduced by Assembly member Mike Gatto (D-Los Angeles) in February 2013.

Proposition 65 requires companies that offer products for sale in California to provide health hazard warnings if those products contain chemicals known to the State to cause cancer or reproductive harm.  California’s Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency in implementing Proposition 65 and maintains a list of over 800 chemicals known to the State to cause cancer and/or reproductive harm.  Proposition 65 allows private citizens—upon meeting certain prerequisites—to bring enforcement actions and, if successful, obtain civil penalties of up to $2,500 per day for each violation and injunctions ordering the companies to provide the requisite warnings, or reformulation of the products in question, so that they no longer contain the violative chemical(s).

AB 227 would allow certain business owners who have received a 60-Day Notice of Violation of Proposition 65 a 14-day period to correct the violation without being subject to a lawsuit.  This “14-day cure” will apply to the following types of exposures:

• Exposures to alcoholic beverages, or to a chemical known to cause cancer or reproductive harm to the extent the chemical is formed on the alleged violator’s premises by necessary preparation of food or beverages which are sold on the alleged violator’s premises for immediate consumption;
• Exposures to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises;
• Exposures to chemicals known to cause cancer or reproductive harm in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.

In order to obtain protection from suit, the alleged violator must: (1) correct the alleged violation within 14 days; (2) pay a civil penalty of $500; and (3) send a written statement, signed under penalty of perjury, to the private enforcer describing all the steps taken to correct the alleged violation, and include a copy of the warning provided.  AB 227 further provides that if there is a dispute between the private enforcer and the alleged violator over whether the alleged violator has properly complied with each of the three required steps, the burden of proving such compliance is on the alleged violator.

Governor Brown has also proposed a number of his own reforms to Proposition 65, including requiring scientific support before initiating an enforcement action and requiring that health hazard warnings be more specific.  The Chanler Group supports these reforms and has long implemented them in our own Proposition 65 practice.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

See below to read the version of AB 227 that passed the Assembly and is now before the California Senate.

Peter Englander, Whitney Leeman, John Moore, and Laurence Vinocur--clients of The Chanler Group--on May 1 served nine 60-Day Notices of Violation of Proposition 65 on companies offering furniture and other products for sale in California that contain chemicals known to cause cancer or reproductive harm, without the required health hazard warning.  TCG's citizen enforcers allege that the companies' products contain the phthalate DEHP, the flame retardant chemical TDCPP, and the heavy metal lead (Pb).  DEHP and lead are known to cause birth defects and reproductive harm, while TDCPP is known to cause cancer.  Some of the noticed companies include Bondhus Corporation, Snap-On Incorporated, and The Homax Group.  See below for a partial list of notices.

Read the most recent notices issued by clients of The Chanler Group

Excerpted from full article at Prop 65 News:

Proposition 65 citizen enforcers Peter Englander, John Moore,  and Laurence Vinocur since February, have served more than 150 sixty-day notices of violation on furniture manufacturers, distributors and retailers alleging the presence of flame retardants TDCPP and TCEP (Tris) in their products. 

TDCPP was added to the list of chemicals known to the State of California to cause cancer in October 2011 by the state's Carcinogen Identification Committee .

Furniture retailers and manufacturers including Ashley Furniture, Basset Furniture, Best Buy, Costco, Flexsteel Industries, Kohl's Department Stores, Officemax, Pier 1, Ross Stores, and The TJX Companies were among those receiving the notices.  link to source