The following is a Legislative Alert update on California Proposition 65 regulatory provisions, which requires California home furnishings retailers to provide warning to consumers on products containing flame retardant chemicals.
In October 2011, the California Office of Environmental Health Hazard Assessment (OEHHA) added tris(1,3-dichloro-2-propyl) phosphate (TDCPP) to its Proposition 65 list of chemicals “known to the State to cause cancer.” Once a chemical is listed, businesses have 12 months to comply with the Prop 65 warning requirements.
Click here to see the most up-to-date Proposition 65 list of chemicals known to the State to cause cancer or reproductive toxicity.
Because TDCPP is used in the residential furniture industry as a flame retardant—particularly to meet California’s TB 117 upholstery flammability standard—the upholstered furniture you sell may contain this chemical and fall under Prop 65 regulation.
Beginning October 1, 2012, businesses are required to provide a “clear and reasonable” warning if a product they sell contains TDCPP.
The California Attorney General’s office enforces Prop 65, which is a “right to know” law that was passed by the state in 1986. Any district attorney or city attorney (for cities with a population exceeding 750,000) may also enforce the law, in addition to individuals “acting in the public interest.” Prop 65 lawsuits have been filed by consumer advocacy groups, law firms and private citizens, in addition to attorneys general. In 2011, settlements totaled more than $17 million.
Proving your products do not contain listed chemicals is likely to be more costly than simply complying with the “clear and reasonable” warning requirement. This warning requirement demands businesses “…make the warning message available to the individual prior to exposure.”
Click here to read the full text of California’s “Clear and Reasonable Warnings” section 25601 of Title 27, California Code of Regulations.
The warning language is simple and should read as follows:
“WARNING: This product contains a chemical known to the state of California to cause cancer.”