California Prop 65 Information

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Does Your Company Ship Wood Products to California? Could You Be Subject to a Lawsuit and Fine?

If your company ships wood products to California, you are already aware of the law called Proposition 65 that went into affect in 1986. This initiative requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. This list which must be updated at least once a year, has grown to include approximately 900 chemicals, exposures, or activities since it was first published in 1987. Businesses with less than 10 employees and government agencies are exempt from Proposition 65's warning requirements.

The California Attorney Generals Office enforces Proposition 65. Any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65. In addition, any individual acting in the public interest my enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. Lawsuits have been filed by the Attorney Generals Office, district attorneys, consumer advocacy groups, and private citizens and law firms. Penalties for violating Proposition 65 by failing to provide notices can be as high as $2500 per day per violation.

Source: CA- OEHHA

Wood Dust Classified as Toxic Under Proposition 65

Facilities and products containing wood dust must include Proposition 65 warning. As of December 18, 2010 suppliers, manufacturers, or any other businesses in the trade which manufacturers, install, transport, or deal in any way with wood products which may contain wood dust, are mandated to post a Proposition 65 warning at their facilities or on their products. Proposition 65 requires that the State of California maintain a list of substances known by the state to cause cancer or reproductive harm. It then provides that no person in the course of doing business shall knowingly and intentionally expose an individual to these substances without first providing a clear and reasonable warning. The warning can be given by a variety of means, such as by labeling of a consumer product, posting signs in the workplace, or distributing or publishing notices. The warning requirement applies to any person employing ten (10) or more employees who manufacturers, produces, sells, distributes, or otherwise transfers a listed substance into the stream of commerce in California.

Businesses with ten (10) or more employees must post a Proposition 65 warning if wood dust is present at their facility or if they sell or transport wood products.

OSHA guidelines define wood dust as, "pulverized wood wastes, or other dusts from cutting, shaping, drilling, sanding, or general handling of wood," and identifies wood dust synonyms such as, "finely divided wood particles, powdered wood, sawdust, wood flour, hardwood dust, wood shavings, or softwood dust."

Current warning sign which appears in current usage (prior to the new regulations going into affect) by some businesses is following:

"Drilling, sawing, sanding, or machining wood products generates wood dust, a substance known to the State of California to cause cancer. Avoiding inhaling wood dust or use a dust mask or other safeguards for personal protection."

Businesses who fail to comply with Proposition 65 could be subject to an attorney general enforcement proceeding. Still worse, they could be subject to a private enforcement lawsuit by a member of the public, and be levied with a monetary judgment for damages and the claimant's attorney's fees, an injunction, and/or civil penalties.

For more information, businesses can visit the California OSHA Proposition website.

Source: On behalf of Last & Faoro posted in Construction Environmental Issues on Monday, December 27, 2010. Attorney Bill Last at 650/425-7679

MORE STRINGENT REGULATIONS GO INTO AFFECT AUGUST 30, 2018

Effective August 30, 2018 companies that ship wood products into California that can be purchased by a consumer or into a factory where additional steps are done to the product are required by law to increase and clarify warnings that are on items. You must be able to answer the Prop 65 Three "W's"

1. Whether - your products contain Prop 65 chemicals?

2. When- Are consumers/bystanders/employees exposed to listed chemicals at levels that necessitate a warning?

3. What- If a warning is required, what does it say and how is it presented?

The new regulations are much more detailed that previous versions. " Warning must be clear and reasonable.The warning label must be prominently placed on product label with such conspicuousness as compared to other words, statements, designs, or devices on labels as to render it likely to be read and understood by ordinary individuals under customary conditions to purchase and use." You must know exactly what is in your product and the concentrations of each substance.

Safe-Harbor Warning Language

The new regulations now require that the safe-harbor warning include the word "WARNING" in all capital letters and bold print and further require that a symbol consisting of a black exclamation point in either a yellow or white equilateral triangle with a bold black outline precede the warning. The new regulations further specify different safe-harbor warnings for products that contain only carcinogens, only reproductive toxins, or a listed chemical that is both a carcinogen and reproductive toxin. Any exposure that results form a person's acquisition, purchase, storage, consumption, or other reasonably foreseeable use or any exposure that results from receiving a consumer service requires a warning. The warning must be prominently placed on product label that must be conspicuous and must be likely to be read and understood by an ordinary individual. An example of the new safe-harbor warning for a chemical that is a carcinogen must now state:

WARNING: This product can expose you to chemicals including sawdust which is known to the State of California to cause cancer and birth defects. For more information go to www.p65warnings.ca.gov

New Warning Requirements

The type size must be no smaller than the largest type size used for other consumer information on the product. The type must be no smaller than 6 point type. The word WARNING must be all bold and caps. It must contain a picture of an exclamation point in a triangle filled in yellow, or black and white. The symbol must be placed to the left of the text of the warning and must be no smaller than the word WARNING.

Note, if you include any directions or explanations in languages other than English, then you must provide warning labels in those languages as well.

Warning Label Language:

If the item is a carcinogen (IE. wood dust) the warning must state: WARNING: This product can expose you to (chemical, IE. wood dust) which in the State of California to cause cancer (For more information go to www.p65warnings.ca.gov)

If the item is a reproductive toxin the warning must state: WARNING: This product can expose you to (chemical, IE. Tolulene) which in the State of California is known to cause birth defects or other reproductive harm (For more information go to www.p65warnings.ca.gov)

NOTE: Prop 65 regulations over-ride Federal regulations in the State of California

Prop 65 warnings must go to all commercial companies that have employees that may come in contact with your product.

For Brick and Mortar facilities there must be a product-specific warning provided on posted sign, shelf tag, at each point of display. Provided via any electronic device or process that automatically provides the warning to the purchaser, prior to or during the purchase. It must also have a product label.

For Internet and Catalog Purchases:

For Internet purchases on the product display page there must be a clearly marked hyperlink using the word "WARNING" that someone may review prior to completion of purchase. For catalog purchases there must be warning that clearly associates it with the item being purchased.

RESPONSIBILITY TO PROVIDE WARNINGS:

Manufacturer, packager, importer, supplier, or distributor. You must affix a warning label to the product or Provide written notice to authorized agent for retailer which :

1. States that a warning is required

2. Includes the name, description or identifying information for the product

3. Includes all necessary warning materials

Businesses providing notice must obtain confirmation of receipt, electronically or in writing.

Your Choice:

Comply by giving warnings, or

Face Risks:

1. Lawsuits from public and private enforcers

2. $2500 per day per penalty, per person, per violations

3. Restitution, plaintiff attorneys' fees and costs, and expert fees

4. Injunctive relief for reformulation of warnings

5. Threat of criminal prosecution?

Notice: Between 2000 and 2017, more than $300 million was paid in settlements. The State of California collected just 15% of the settlement money, the remaining 85% was collected by bounty hunters and their attorneys.

Recommendations:

Do a Prop 65 audit and know your risks. Conduct an exposure evaluation. Manage and reduce exposures as needed. Understand new Prop 65 warning complexity. Review current warnings, and plan to change as needed so that you don't lose your Safe Harbor verbiage. Prepare for a "compliance" lawsuit if you chose to do nothing.

Information courtesy of NAM- Manufacturing Center for Legal Action, Crowell & Morning LLP via Webinar held May 3, 2018.