Prop 65 Warning

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.

Earlier this month, Environmental Health Perspectives, a National Institutes of Health journal, reported on two studies showing that exposure to the carcinogenic flame retardant TDCPP, commonly referred to as chlorinated tris, may be widespread.

TDCPP is a flame retardant widely used in polyurethane foam padding in furniture and automobiles.  A recent survey found that TDCPP was present in many U.S. couches, and it was the most frequent flame retardant found in a survey of 101 foam padded infant and children products, such as car seats, strollers, changing table pads, nursing pillows, portable crib mattresses, and infant sleep positioners.  Because there is nothing keeping TDCPP contained within the foam, the chemical escapes easily into its surrounding environment and often ends up in household dust, which is then inhaled or ingested.  Small children are especially at risk of exposure because they are close to the floor and often place their fingers or objects in their mouths, and are therefore at higher risk of cancer.

Recent animal studies have suggested that TDCPP is neurotoxic, an endocrine disruptor, and a reproductive toxicant.  California’s Office of Environmental Health Hazard Assessment (OEHHA) has designated it as a chemical known to the State to cause cancer, and The Chanler Group’s clients have filed complaints against several furniture manufacturers and retailers for failure to provide the required health hazard warning with their products.

One recent study conducted by Boston University researchers and published in Environment International found that TDCPP markers were present in the urine of all the participants in the study, all of whom worked in office environments.  Another study, published in Environmental Health Perspectives, found that most of the participants had TDCPP markers in their urine as well.  These findings indicate that TDCPP exposure may be quite widespread in the U.S. population.

Despite recent industry action to end the production and usage of TDCPP in foam padded furniture, older furniture pieces that still contain TDCPP continue to release the chemicals into indoor dust; even if older furniture pieces are disposed of, the TDCPP already released into the dust remains, perhaps for years, and users continue to be exposed to its carcinogenic effects.  Individuals and parents concerned about exposure to TDCPP should wash their hands and their children’s hands frequently.

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.