On Aug. 30, 2018, updates to California’s Proposition 65 (Safe Drinking Water & Toxic Enforcement Act of 1986) took effect and required all products in the state to include warning labels if they contained one of more than 950 chemicals that could cause cancer, birth defects or other reproductive harm. The law, created to protect the golden state’s water supply, has expanded over time to affect products ranging from household desk lamps to building materials.
As a result, more manufacturers of HVAC products are putting warning labels on products like sealants and adhesives to comply with the state's law, causing unintentional concern among contractors and consumers in the process. Here, Joseph J. Green — special counsel on complex environmental regulatory matters at Kelley Drye & Warren LLP — clears up some of the law's legal confusion and breaks down a few key points every manufacturer and contractor should know.
What do your clients find the most confusing about Proposition 65? What are the most common things companies get wrong in trying to comply?
Among the many frustrations of California’s Prop 65, none is more confusing or critical than the fact that a company can do everything right: test their products and determine what level of exposure, using the best scientific methods, may occur in a reasonable worst case scenario; determine that those levels pose no risk and are below the “safe harbor level” for triggering warnings; and document these findings in a detailed report … yet still be subject to a private plaintiff lawsuit and either settle or get dragged into court to defend themselves at significant cost, even if ultimately proven correct. Faced with this unfortunate reality, many companies opt to post a warning, even when no real risk exists, simply to avoid getting caught in the web of bounty seeker lawsuits.
The confusing part is not what language to use in the warning, or how to provide the warning, but determining WHEN the warning should be provided. Frustratingly, California has never done much to address this fundamental issue and the imbalances in the law that give plaintiffs dramatic leverage and lead to a surplus of useless warnings.
The law has had wide implications, affecting food packaging to construction/building trades. What has been your experience in advising clients in the building trades?
For building product materials, most exposure scenarios are occupational. For business-to-business sales, Prop 65 generally recognizes that compliance with OSHA requirements is sufficient for the California-based employer (the supplier does not have Prop 65 liability in these B2B scenarios) — though it can get tricky in cases where a company HazCom program does not address a particular chemical for which a Prop 65 warning may be required. (This may happen because the standard for providing a Prop 65 warning is set at levels much lower than for which OSHA would require a warning.) It gets more complicated for building materials that are sold at retail, such as at Home Depot, etc. — and, therefore, subject to the consumer product warning requirements (which are what we usually hear about in the media when talking Prop 65).
Is it common for consumers to see all these WARNING labels and think everything causes cancer? I mean, who could blame them?
This is one of the chief problems with Prop 65: yes, there have been some instances where Prop 65 has driven elimination of hazardous chemicals in products we use or consume everyday — such as lead in candy — but for the most part, Prop 65 has lead to the proliferation of a ridiculous number of warnings that are everywhere in California and, frankly, on products throughout the country. Website sales, which require a warning for purchasers in and shipments to California, have spread these “California” warnings nationally and globally. While Californians may be used to them (and, largely, ignore them), the rest of the country is not as savvy about their meaning.
The purpose gets lost when so many products bear the same kind of warning — even though many of those warnings are for very low levels of exposure that pose no real significant risk. This situation distracts us from the smaller percentage of warnings that actually are warranted and should be meaningful but get lost in the tidal wave of silly warnings.
Considering California’s Proposition 65 law as is, is it safe to say that anything that is not completely organic will end up carrying this warning?
That is an overstatement, but not by much. For example, lead is present naturally (and unintentionally) in many metal products, as a residual contaminant. Companies can — and often do — document that the levels are insignificant and below the level triggering a warning. But others, when they find any level of lead or other listed substances, simply opt to warn out of an abundance of caution.
What are the difference (if any) between California’s Prop 65 and similar legislation New York is entertaining?
There are a couple of major differences that, presumably, are intended to avoid some of the worst aspects of Prop 65. First, and critically, the determination on which products require a warning is to be made by the state regulators, not left to the company to decide. Second, enforcement also will be carried out by the state and not private enforcers. As a result, the NY law, if adopted, should avoid the proliferation of unnecessary warnings, and the frustrations of facing bounty hunter plaintiffs seeking to extract a settlement. Of course, the regulatory process could become a nightmare, but at least the NY program presumably will not have those two major flaws that largely are responsible for the absurdities of Prop 65.
Do you think we are seeing the start of a trend as more buildings are pushing for LEED ratings and companies are looking to reduce their carbon footprints?
Absolutely. In fact, I’d say the trend isn’t just starting, but entering a maturation phase as the concepts of LEED and similar green building programs become almost commonplace. The idea of “chemical awareness” — with respect both to consumers demanding more knowledge about what is in the products they use or the buildings they work and live in, and the need for companies to know about the chemicals in their products (and the potential for exposure and risk) — is becoming a fundamental aspect of our society, and critical for every business to understand.