Meeting Proposition 65
Compiled by Juli Case
We’re located in Wisconsin and we’re making a fabric product for a customer in California. They’re asking that we provide certification that the product meets Proposition 65. How do we do that?
Proposition 65 refers to the Safe Drinking Water and Toxic Enforcement Act of 1986, and requires the state of California to keep a list of chemicals that are known to cause cancer, birth defects or fertility issues. This list is updated yearly and is maintained through California’s Office of Environmental Health Hazard Assessment (OEHHA).
There are two parts to Proposition 65. First, Californians are to be warned if any of these chemicals are present in significant levels in the products they purchase or in their environment (work or home). The idea is to provide Californians information so that they can make informed decisions about their exposure to these chemicals. Second, businesses operating in California are prohibited from releasing significant amounts of these chemicals into sources of drinking water.
If your product—any product, including one made of fabric—contains a significant level of a chemical on the OEHHA list of chemicals known to the state to cause cancer or reproductive toxicity, then you are required to notify your customers of this fact.
There are two exceptions to the warning requirement. First, your business is exempt if you have less than ten employees. Second, if the chemicals are present in your product, but in low enough levels not to be of significant risk, you aren’t required to issue a warning. The latter is referred to as “safe harbor” numbers.
The latest revision of the “Chemicals Known to the State to Cause Cancer or Reproductive Toxicity,” dated June 2010, is located here:
http://oehha.ca.gov/prop65/prop65_list/files/P65single061110.pdf
The latest revision of the “Most Current Proposition 65 No Significant Risk Levels (NSRLs) Maximum Allowable Dose Levels (MADLs),” or Safe Harbor Numbers, is located here:
http://oehha.ca.gov/prop65/pdf/2009FebruaryStat.pdf
How do you know if the materials you’re using in your finished product have any of these chemicals in significant levels? Your best bet is to check with your supplier. If their product is already being used in California, they should already have this information. If not, then they should be able to compare the chemicals used in its production with the OEHHA list.
If you do have to issue a warning, the OEHHA indicates that it has to be “clear and reasonable.” For a fabric product, the warning would most likely be in the form of a label. For suggested wording, the document you need is Title 27, California Code of Regulations, Section 25601-Section 25605.2, located here:
http://oehha.ca.gov/prop65/law/pdf_zip/RegsArt6.pdf
The OEHHA is responsible for the language of Proposition 65 and for updating the chemical list, but consider it a ‘self-executing’ law. In other words, it’s up to a business to determine if a product contains the chemicals and if a warning needs to be issued. (Violations can be enforced by the California Attorney General or any local government authority. Individuals also have the right to sue.) Similarly, the OEHHA does not track the warnings themselves. In other words, should you issue a warning on your product, you are not required to provide the OEHHA with the reasons.
There is no official certification through the OEHHA that your product is free of the chemicals on the list. If your customer is requesting one, you will need to work with them to determine what they would consider acceptable documentation.
