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How to Maintain Compliance With California Prop 65

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Prop 65 warning label

Though keeping the consumer safe is the simple aim of most chemical use regulations, keeping track of them has been all but simple for most retailers.

In an effort to simplify one such set of chemical rulings, Ben Mead, managing director of Hohenstein Institute America, an accredited test lab, research center and Oeko-Tex certifying institute, divulged the details of California’s Prop 65 at Regulation Education, a half-day workshop hosted by Sourcing Journal in New York last week.

Prop 65, more formally known as the Safe Drinking Water and Toxic Enforcement Act, requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. The rules apply to products for purchase or public spaces like parking garages where excessive exhaust fumes are emitted.

Since its establishment in 1986, the list of no-good chemicals has swelled to 900, with chemicals coming and going as their effects are better understood.

Apparel retailers using any one of those 900 chemicals and hoping to sell goods in the Golden State are required to label such products with warnings reading similar to: This product contains a chemical known to the State of California to cause cancer/birth defects or other reproductive harm.

“We have a duty to warn people that we’re exposing them to this chemical unless we know for certain the level is so low that it’s not going to cause any harm,” Mead said.

But companies would be well-advised to be very certain, as the maximum penalty for noncompliance is $2,500 per violation per day that the product is on the market and inappropriately labeled.

“If you sell one SKU but you have 500,000 units times $2,500 per day, it’s a lot,” Mead said.

To help businesses better understand when exactly they needed to disclose a chemical’s presence, the state established safe harbor levels, which include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals that cause reproductive toxicity.

Exposures considered below the safe harbor levels can be exempted from the Prop 65 requirements.

The problem companies have faced with the safe harbor levels, however, is that the amounts are given in micrograms per day. And since most sourcing and compliance executives don’t moonlight as toxicologists, things can get complicated.

Moreover, a test report from a lab can specify a chemical’s concentration, but the type of material, type of product and use conditions can affect the exposure.

What companies should do, Mead explained, is call on a toxicologist, explain exactly how a product was built, what went into it and how they expect consumers to use it, and then ask the toxicologist to determine whether the product is still under the allowable amount thresholds.

Some chemical concentration limits have been agreed to based on legal settlements and they are product specific. For apparel in one settlement specifically, no more than 90 parts per million (ppm) of lead was allowed in a surface coating. But these limits only legally apply to parties involved in the settlement.

Keeping chemical use straight is increasingly challenging in today’s world where innovations lead to alternate uses and alternate end products.

“We are trying to make natural fibers perform like synthetic fibers and synthetic fibers perform like natural fibers and we’re introducing a whole range of performance and chemicals that weren’t there before,” Mead said.

So how is a company to test for all the 900 products on the Prop 65 list?

They could endeavor to test for everything on the list, but the costs would likely leave them out of business. They could strategically test high-risk components for selected chemicals. They could simply label everything with a warning, or they could test according to concentration limits of past settlements.

Perhaps the most effective way would be to simply know exactly what’s going into your product—something most retailers haven’t really aced.

Costs for compliance are already high and being noncompliant with Prop 65 only adds fuel to the expensive fire.

In some cases, the $2,500 per violation per day can be the least of a company’s worries. In one case that went to court where a workout arm band contained Prop 65 chemicals that weren’t properly disclosed, the civil penalty cost the company $3,000, the legal fees $18,000 and additional contingent civil penalties rang it at $16,000.

“The more info you can get going back through your supply chain partners and really learn what’s in your product, the better prepared you’ll be,” Mead said.

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