Litigation

Still More Chemicals Up For Proposition 65 Listing

By Bruce Nye

    Now we all got a good chuckle over the Proposition 65 Cancer Identification Committee's recent action in listing marijuana smoke as a carcinogen (see:  Proposition 65 Now Protects Stoners.  As they say, however, "but seriously folks . . . ."

    The CIC voted on May 29 to prioritize 38 more chemicals for possible listing as carcinogens.  Nine were designated as high priority, and these include fluoride (yep, the stuff the dentists use, Crest puts in its toothpaste and many water districts add to the water), Perfluorooctanoic acid (PFOA) (a once-common surfactant used in Teflon, Goretex, Scotch Guard) and -- "towards the bottom of the 'High' category depending on exposure considerations" Diisononyl phthalate (DINP).

    Now, if past is prologue, it may be a long, long, time before the CIC gets to a chemical that is "towards the bottom of the 'High' category."  But if it ever does, look out.  The Proposition 65 plaintiff bar has been going after the plasticizer DEHP with a vengeance for the past eighteen months.  While DEHP is listed both as a Proposition 65 carcinogen and a reproductive toxin, there is likely no duty to provide a cancer warning for DEHP because of the trial court's decision in Baxter v. Denton (2004) 120 Cal.App.4th 333.  But until somebody proves that human exposures are below the MADL, there will be a duty to provide Proposition 65 warnings about that chemical's reproductive/developmental toxicity. 

    What does this have to do with DINP?  Well, for non-children's items, the substitute plasticizer of choice has been DINP (DINP is already banned on an interim basis pending further study by the recently enacted Consumer Product Safety Improvement Act).  If DINP makes it to the cancer list, the impact on manufacturers of inexpensive vinyl goods (think about just about any cheap soft plastic product you can imagine) is going to be huge.

    For more on Proposition 65 wackiness, you can always look at CalBizLit's collection of Proposition 65 posts here, or download my firm's White Paper on the subject here.

Full post as published by CalBizLit on June 30, 2009 (boomark / email).