PROPOSITION 65 ACTIVITY HEATS UP ON FLAME RETARDANT TDCPP

Tris (1,3-dichloro-2-propyl) phosphate (TDCPP) is a chemical used as a flame retardant by the furniture industry to meet flammability standards, including California�s TB 117.  TDCPP is found in the polyurethane foam used in a number of products in addition to home furnishings, such as children�s products, automotive interiors, novelty items, and packaging.  In October 2011, the California Office of Environmental Health Hazard Assessment (OEHHA) added TDCPP to the Proposition 65 list of carcinogens and, on October 9, 2012, published a No Significant Risk Level (NSRL) for TDCPP of 5.4 micrograms per day.  Since October 2012, citizen enforcers have issued more than 50 notices of violation to manufacturers and retailers of products alleged to expose California consumers to TDCPP.  The noticed products have thus far included household furniture, children�s products, and massage/lumbar support pillows.  It can reasonably be anticipated that the types of products targeted by enforcers will broaden.

If a product contains a chemical on the Proposition 65 list, all businesses with ten or more employees are required to provide a �clear and reasonable warning� before exposing Californians to that product.[1]  The warning requirement, which applies to manufacturers and retailers alike, becomes effective one year after the chemical is placed on the Proposition 65 list.  Unless the listing of TDCPP by OEHHA can be successfully challenged in the courts or a business can establish an exemption to the warning requirement, all products containing TDCPP must now carry a Proposition 65 compliant warning.

Proposition 65 Compliance

In order for a warning to be Proposition 65 compliant, the following considerations must be satisfied:

• The Warning Must Be �Clear.�  The text of the warning must communicate that the chemical is known to cause cancer, or reproductive harm.  The regulation provides the following safe-harbor �clear� warning language for a carcinogen:

WARNING: This product contains a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.

• The Warning Must Be �Reasonable.�  The warning must be conspicuous enough that a consumer would probably see it before the exposure.  If it appears on a label with other warnings, it must be no smaller than the other warnings.  The other language should not contradict the warning language.  Further, any language included in the warning, elsewhere on the warning label and/or elsewhere on the product that somehow softens the warning will likely be determined to fall outside the safe harbor.

Proposition 65 Exemptions

A business has �safe harbor� from Proposition 65 warning requirements if exposure to a chemical occurs at or below the NSRL.[2]  The NSRL is defined as the level of exposure that would result in not more than one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime.  In other words, a person exposed to the chemical at the �no significant risk level� for 70 years would not have more than a �one in 100,000� chance of developing cancer as a result of that exposure.

As a practical matter, even with the NSRL set by OEHHA for TDCPP, it may be difficult for a business to establish that the TDCPP in its product falls within the NSRL.  Proposition 65 compliance is based on how much of a substance the average person is exposed to, not on how much is in the product.  An exposure analysis can be a complex and costly undertaking.

Proposition 65 Remedies and Enforcement

The primary remedies available under Proposition 65 are injunctions and civil and criminal penalties of up to $2500 per violation per day.  Proposition 65 is enforced through litigation brought either by �public enforcers� (including the California Attorney General and certain district attorneys) or by �citizen enforcers� (organizations or private California citizens).  Most Proposition 65 actions are filed by citizen enforcers. 

Since 1986, few Proposition 65 cases have been fully litigated through trial.  The vast majority of the cases have been settled out of court or resolved through consent judgments.  Citizen enforcers collect millions of dollars in settlements from manufacturers and retailers every year.  Not surprisingly, the number of Proposition 65 cases filed each year continues to increase.  In 2012, there were more than 950 notices of violation served; this year the number of notices will undoubtedly exceed 1,000. 

Orrick lawyers have been representing clients in Proposition 65 litigation and other Proposition 65 related matters for over 20 years.  Further information about Orrick�s Proposition 65 practice can be found on Orrick�s Web site at: http://www.orrick.com.