What is Proposition 65?
California Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, is in initiative to address California residents’ concerns about exposure to toxic chemicals. Proposition 65 requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment.
The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program. OEHHA, which is part of the California Environmental Protection Agency (Cal/EPA), also evaluates all currently available scientific information on substances considered for placement on the Proposition 65 list.
Below are answers to frequently asked questions regarding Prop 65. Click each heading to expand or collapse the section.
How does this affect me?
In October 2011, the CA OEHHA added tris (1,3-dichloro-2-propyl) phosphate (TDCPP) to the 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.
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.
What if my products don't contain Tris (TDCPP)? Does Prop 65 still affect me?
YES. Proving your products do not contain listed chemicals is likely to be more costly than simply complying with the “clear and reasonable” warning requirement.
Also, there are nearly 800 chemicals on the Prop 65 list of chemicals known to the state to cause cancer or reproductive toxicity. Even if you don’t sell products that contain Tris, some of your products may contain other chemicals on the list, such as:
- bisphenol a (BPA) — a material used in synthetic laminates; found in foils or paper used in cronstruction powder or UV coatings
- DEHP — a chemical used in clear coatings for faux, vinyl and bicast leather items
What if I only sell case goods? Does Prop 65 still affect me?
YES. Proposition 65 applies to all consumer products that are offered for sale in the state of California.
Do I really need to worry about this?
YES. In the past several months, private plaintiffs have issued more than 100 Prop 65 notice letters to companies concerning the TDCPP in furniture products and mattresses, the bulk of which have been filed by Peter Englander, a private citizen represented by law firm The Chanler Group. In California, citizens can file notices with the Attorney General’s office, which then issues citations.
The notices filed this month give furniture suppliers 60-days to respond, after which, the attorney general decides which cases to pursue.
Often, firms that file the notices receive settlements, which can range from thousands to more than $100,000 in penalties, according to listed settlements on the attorney general’s website.
Although companies often settle Prop 65 cases, in 2011, the average settlement total was about $65,000 for a total of $17 million collected in litigation and settlements. The money goes to the plaintiffs who file the complaints (source: Furniture|Today, vol. 27 no. 27).
There is no grace period. There is no opportunity to correct a violation or citation. The only opportunity to protect yourself is to start labeling and putting up signs and notices…now.
How do I do protect myself from Prop 65?
Provide multiple notices on your products, in your showroom, at your registers, on your websites and on sales contracts.
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.”
The warning language is simple and should read as follows:
“WARNING: This product contains chemicals known to the state of California to cause cancer, birth defects or other reproductive harm.”
Based upon conversations with the various agencies and concerned individuals, as of now it has been determined that the warning can be printed on a label you to affix to all upholstered products in your store. The label should be placed in a conspicuous location on every product in your showroom.
We have created an easy to print sticker with the updated warning language which can be downloaded and printed on an Avery Label 5263 (See Resources section at the bottom of this page)
Merely labeling all of your products in your showroom is NOT enough to avoid citation. The following are suggestions the NAHFA highly recommends you also implement in order to ensure full compliance with the Clear and Reasonable Warning requirement.
- Place labels on shelving or platforms on which items sit in your store
- Post multiple warning signs in prominent locations within your store easily visible to your customers, including one at your registers
- Apply the warning to a self inking stamp and stamp ALL price tags on ALL items in your store
- Stamp all sales contracts / agreements, and require customers to initial that they have read and understand the Proposition 65 warning
- If your manufacturers / reps have not already done so, apply the warning to all law labels of all items in your store
PLEASE BE ADVISED: these are merely suggestions on how to comply with CA Proposition 65 regulatory provisions. NAHFA highly recommends you consult your own legal counsel to ensure both full compliance with Prop. 65 as well as protection from legal action. NAHFA also recommends you consult your furniture manufacturers and suppliers regarding their plans for securing protection for themselves and providing help to retailers regarding this matter.
Do I need to provide a warning for out-of-state and online purchases?
YES. Suggestions for online implementation have included:
using ZIP codes when items are sold to determine when to issue warnings
using a pop-up or separate disclaimer/agreement page as part of your online purchase process so that the warning is provided conspicuously and the consumer must agree that s/he has read it
Most of the recent legal action has concerned Tris in upholstered products. Is that all I need to worry about?
There are nearly 800 chemicals on the Proposition 65 list of chemicals known to the state to cause cancer or reproductive toxicitiy. These range from chemicals that pose limited or no risk based solely on their presence at a business establishment—such as alcoholic beverages and aspirin—to others that pose an obvious and widely known risk, like diesel engine exhaust and tobacco smoke.
Given the range of listed chemicals, it’s easy to understand why business owners sometimes fail to realize a warning sign is required.
Further, many business owners rightly determine that signage is not warranted given the exposure levels of a particular chemical at the business establishment, or that no listed chemicals are present at all, but this does not prevent a firm from making an allegation in a demand letter in order to pressure the business into handing over a small settlement.
Hundreds of businesses are targeted in these lawsuits each year, costing the state millions of dollars in lost productivity and jobs.
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 is why the NAHFA strongly recommends you not only label every product in your showroom, but also implement multiple other measures in order to ensure full compliance with Proposition 65 regulatory requirements.
Resources to Stay Informed
Click here to view the most up-to-date Proposition 65 list of chemicals known to the state of California to cause cancer or reproductive toxicity
OEHHA posts on its website a table containing information on the status of chemicals currently being considered for addition to the Proposition 65 list under the authoritative bodies mechanism. The table is intended to assist stakeholders and the public in tracking the status of chemicals proposed for listing based on the decisions of authoritative bodies. OEHHA updates this table on a regular basis.
Full text of the Safe Drinking Water and Toxic Enforcement Act of 1986 (CA Prop 65)
Full text of California’s “Clear and Reasonable Warnings” section 25601 of Title 27, California Code of Regulations
Get more information online from the California Office of Health and Hazard Assessment (OEHHA) on Proposition 65
Get more information online from the California Office of the Attorney General on Proposition 65
Join the Cal OEHHA Proposition 65 listserv to stay informed about Proposition 65 regulatory information, changes to the list or public meetings
Search the 60 day notices of businesses that have been served. (Type in “furniture” under “defendant” and you will search vendors/retailers in the database served a 60 day notice. This list is not comprehensive, there are more defendants than this, but it provides a temperature of the water.)
Prop 65 Clearinghouse: Their expert staff provides an independent source of news with over 15 years experience in Prop 65.
Resources to Take Action
Recent Articles on Prop 65 in the furniture industry
October 29, 2013 — Furniture Today adds Prop 65 session to Leadership Conference
October 8, 2013 — More settlements made in California Prop 65 cases
June 3, 2013 — BPA dropped from CA Prop 65 List
April 18, 2013 — Firm to list companies that come up ‘clean’ on Prop 65
March 4, 2013 — AHFA: Communication key to avoiding Prop 65 penalties
January 25, 2013 — Upholstery suppliers hit with Prop 65 violation notices in California
Last updated: Tuesday, October 31, 2013