Litigation

Proposition 65: Warning v. Reformulation

By Bruce Nye

As regular readers of CBL know, California's Proposition 65 prohibits companies  employing ten or more persons from exposing persons to "chemicals known to the State of California to cause cancer" or "chemicals known to the State of California to cause reproductive or developmental harm" without first giving "clear and reasonable warning."

There is no doubt that when the sponsors of Proposition 65 cooked it up back in the 1980's, the hope was that the cancer or other warnings would have a sufficiently deleterious impact on the desirability of products that manufacturers would want to reformulate them to remove the listed chemicals, rather than simply giving the warning. 

Experience has shown that this is sometimes true, sometimes not.  For example, all gasoline contains Proposition 65 listed chemicals.  So every gasoline pump in California contains a warning that it contains carcinogens and reproductive toxicants.  Nobody really worries about this;  I suspect that manufacturers figure that consumers figure that this stuff is bad for you, so the warning doesn't contain any meaningful news.  On the other hand, cosmetics -- substances people put on their faces -- involve a significantly intimate connection that no manufacturer wants to include a cancer warning with makeup.  And as a result, a lot of makeup products have been reformulated.

The most recent example of this is an announced settlement involving womens' vinyl and leather purses, handbags, clutches, etc..  Lots of vinyl and some leather contains lead.  Lead, of course, is listed as both a carcinogen and a reproductive toxicant (and has been the subject of much recent regulation in children's products).  Active Proposition 65 bounty hunter (or private party enforcer, depending on your point of view) Center for Environmental Health tested purses, handbags, wallets and clutches from more than 100 sources, found lead, and served them with 60 day notices.  Last week, CEH announced settlements with four of the companies for payments of $35,000 each, with the companies also agreeing to reduce the lead content in these products to less than 90 ppm of lead in surface coatings and 600 ppm in materials by March 1, 2010, reducing the material standard to between 200 and 300 ppm by next year.  The story is here.

Full post as published by CalBizLit on January 25, 2010 (boomark / email).