With the biggest sales day of the year shortly upon us, a new wave of on-line shopping Americans likely will see Proposition 65 warning notices for the first time.  Though California’s notorious program technically only applies within the state’s borders, Prop 65’s impact stretches well beyond.  Non-California businesses long have had to deal with Prop 65’s requirements since it was adopted by voter referendum in 1986.  Now, however, non-California consumers will be introduced to the ubiquitous warnings (that many Californians simply ignore) thanks to recent amendments emphasizing the need to provide warnings for internet purchases.  (For more details on the recent amendments, including the requirements for internet sales, please see my prior blog post.)

With an exponential increase in recent months of such internet warnings (and the fact that most businesses do not maintain “California-only” websites), consumers across the United States will be seeing many more of these warnings, perhaps for the first time, as they start their holiday shopping.  This article from Yahoo News (Article) — “‘This product contains chemicals known … to cause cancer’: How to navigate Prop 65’s scary warnings while toy shopping” — gives a sense of how consumers may respond … and, more importantly, hints at how such warnings should be understood.

In particular, consumers should keep in mind:

→ There are over 900 chemicals listed by the State of California as potentially causing cancer or reproductive/developmental harm.  Many of these substances are listed based on exposures (usually to laboratory animals) at levels hundreds or thousands of times higher than the level to which a person ever would be exposed.

→ Because of the punitive enforcement mechanisms of Prop 65 … and the proliferation of plaintiff “bounty hunters” that enforce the law … many businesses choose to provide a warning (even when one is not necessary) rather than defend a determination (based on sound science and common sense) not to provide a warning in a lawsuit at substantial cost.

→ Most importantly, remember that it is “the dose that makes the poison.”  The existence of a warning does not mean that the product actually poses any kind of meaningful risk.  In most cases, the presence of a warning only means that there may be some exposure to a listed substance, mainly due to the practicality of providing a warning even when one is not necessary.

Prop 65 is intended to force businesses to provide a warning if they choose not to reformulate listed chemicals out of their products.  For many products, reformulation is not an option.  Moreover, it may be impossible to avoid miniscule amounts of certain substances, such as lead, which are ubiquitous contaminants in many materials.  Hence, there is a proliferation of warnings on products that are provided simply out of an abundance of caution and serve no real risk-reduction purpose.  (Which is why they are routinely ignored by many Californians … unfortunately, the rest of the country is not nearly as familiar with them.)

Now these warnings are coming en masse to the Black Friday shopping website of your choice ….  something to consider while enjoying your turkey this Thanksgiving!

By November 2021, the European Union (EU) is requiring that clothing, accessories, footwear and other textiles (such as furniture upholstery and bed linens) be essentially free of 33 “CMR” substances, including lead, cadmium, arsenic, hexavalent chromium, formaldehyde, several phthalates, and certain azodyes, aromatic amines, and hydrocarbons, among other substances often found in a variety of dyes, flame retardants, and stain- and water-proofing agents.  The restrictions, adopted on October 10 under Annex XVII of the EU’s REACH legislation, apply to textile products sold in the EU that may come into contact with human skin (or be inhaled or ingested) and aim to reduce exposures to substances identified as carcinogens, mutagens, or reproductive toxins (so-called “CMR” substances).

The regulation specifies acceptable de minimis levels for the 33 substances, ranging from as low as 1 mg/kg to 3,000 mg/kg.  Amounts above these levels, whether present intentionally or as an impurity, would be prohibited.

The restrictions do not apply to (a) products made exclusively of natural leather, fur or hide; (b) non-textile fasteners and non-textile decorative attachments; (c) second-hand clothing or other products; (d) carpets, rugs, and other textile floor coverings; or (e) medical devices or personal protective equipment, as well as disposable (i.e., single or limited use) textiles.

While a two year phase-in is provided to allow for manufacturers to conform to the new restrictions, a number of companies reportedly already have reformulated away from the listed substances and adopted (supposedly) less hazardous alternatives or are on track to do so.

The full text of the new EU regulation can be found here:  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2018.256.01.0001.01.ENG&toc=OJ:L:2018:256:TOC.