Prop 65 Warning

John Moore, a client of The Chanler Group, and Mannington Mills, Inc., a flooring manufacturer, reached a settlement this month, resolving Moore’s allegations that Mannington violated Proposition 65 by offering vinyl sheet flooring containing the phthalate chemical benzyl butyl phthalate (“BBP”) for sale in California without first providing the required health hazard warnings.

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has designated BBP as a chemical known to cause reproductive harm. 

As part of the settlement, Mannington will pay an initial civil penalty of $25,000, 75% of which will be paid to OEHHA, with the remaining 25% to be paid to whistleblower Moore.  Mannington also agrees to reformulate all flooring products that it offers for sale in California to contain less than .01% BBP.  On December 31, 2013, Mannington will pay a final civil penalty of $70,000.  However, if Mannington reformulates its products to achieve the less than .01% BBP standard by December 15, 2013, Moore will waive the $70,000 final civil penalty.  This settlement structure provides an incentive to Mannington to promptly reformulate its products to virtually eliminate BBP, or pay a much more substantial penalty than the initial penalty.  In addition to the civil penalties, the settlement payment includes a $7,500 cy pres payment to the Silent Spring Institute in lieu of further civil penalties.  Altogether, Mannington may be liable for $95,000 in civil penalties, plus the $7,500 cy pres payment, for a potential total of $102,500.

Silent Spring is a non-profit organization staffed by scientists and researchers who work together to identify and break the links between exposure to harmful chemicals (including BBP) and cancer and/or reproductive harm.

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.

Democrats in Congress, including Senator Richard Blumenthal (D-CT) and Reps. Frank Pallone (D-N.J.) and Rosa DeLauro (D-Conn.), are concerned about the White House Office of Management and Budget’s (OMB) extended delays in clearing the U.S. Food and Drug Administration’s (FDA) proposed guidelines to reduce the amount of arsenic, a known carcinogen, in fruit juice. In separate letters, they urged the OMB to release the guidelines.

Senator Blumenthal’s letter to the OMB reminded them that “there are human costs to delay” and that “[P]arents should not have to worry about whether the juice they give their child has arsenic in it.”

Reps. Pallone and DeLauro’s letter to OMB, stated that “[I]t is inexcusable that these guidelines are stalled while consumers continue to be exposed to potentially dangerous levels of arsenic.”

There is concern that frequent exposure to arsenic in juice could heighten children’s risk of developing deadly disease.  Inorganic arsenic has been linked to a range of cancers, including bladder, lung, and skin cancer.

Although the FDA guidelines sought by Senator Blumenthal and Reps. Pallone and DeLauro are only voluntary guidelines, Pallone and DeLauro are planning on introducing a bill to establish enforceable federal standards for arsenic and lead in fruit juice in the coming months.

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.

Russell Brimer, Peter Englander, Whitney Leeman and Laurence Vinocur--clients of The Chanler Group--served eleven 60-Day Notices of Proposition 65 Violation today.  The notices were served to companies offering products such as furniture, paint mixer, hand tools, and kitchen tools for sale in California containing 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 chemicals TDCPP and TCEP, and the heavy metal lead (Pb).  DEHP and lead are known to cause birth defects and reproductive harm, while TDCPP and TCEP are known to cause cancer.  Some of the noticed companies include Energizer Holdings, Fastenal, and Valu Mart.

See below for a partial list of notices.

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

U.S. Senators David Bitter (R-La) and the late Frank R. Lautenberg^* (D-NJ) last month proposed new legislation that, if enacted, would modernize the 1976 Toxic Substance Control Act (TSCA).  The proposed Chemical Safety Improvement Act of 2013 would ensure that all chemicals registered in the United States and all newly created chemicals are screened for safety to the environment and the public health, while also maintaining the conditions that foster financial growth, innovation, and job creation for chemical manufacturers. 

Under current law, the U.S. Environmental Protection Agency (EPA) can call for safety testing only after evidence surfaces to demonstrate that 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 only been able to ban five dangerous substances since the TSCA was first enacted in 1976.

In contrast, the Chemical Safety Improvement Act of 2013 would:

• Require Safety Evaluations for All Chemicals: All chemicals currently available in the U.S. market must be evaluated for safety and labeled as either a "high" or "low" priority chemical based on the potential risk to human health and the environment. For high priority chemicals, EPA must conduct further safety evaluations.
• Protect Public Health from Unsafe Chemicals: If a chemical is found to be unsafe, the EPA has the necessary authority to take action. This can range from labeling requirements to the full phase-out or ban of a chemical.
• Screen New Chemicals for Safety: New chemicals entering the market must be screened for safety and the EPA has the authority to prohibit unsafe chemicals from entering the market.
• Secure Necessary Health and Safety Information: The legislation allows the EPA to secure necessary health and safety information from chemical manufacturers, while directing the EPA to rely first on existing information to avoid duplicative testing.
• Promote Innovation and Safer Chemistry: This legislation provides clear paths to getting new chemicals on the market and protects trade secrets and intellectual property from disclosure.
• Protect Children and Pregnant Women: The legislation requires the EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical.
• Give States and Municipalities a Say: States and local governments will have the opportunity to provide input on prioritization, safety assessment, and the safety determination processes, requiring timely response from the EPA, and the bill establishes a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.

^*Sadly, Sen. Lautenberg passed away on Monday, June 3, 2013, at the age of 89 after an esteemed 30-year political career committed to the nation’s health and safety, from raising the legal drinking age to 21 to winning a smoking ban on almost all domestic airline flights.  Sen. Lautenberg blamed his own father’s death on bad air in the silk mills of New Jersey and later cited this as motivating his interest in labor rights and environmental safety.  The Chemical Safety Improvement Act 2013 may well become part of that legacy.

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.