The Proposition 65 list identifying chemicals known to the State of California to cause cancer or reproductive harm got a little longer in September 2013, with the addition of five new chemicals by the Office of Environmental Health Hazard Assessment (OEHHA).
Effective September 13, 2013, chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid are chemicals known to the State of California to cause cancer for purposes of Proposition 65. 1,1,1,2- tetrachloroethane is commonly used as a solvent and in the production of wood stains and varnishes. Trichloroacetic acid is commonly used in cosmetic treatments such as chemical peels and for the removal of tattoos and treatment of skin tags, warts and moles.
Effective September 27, 2013, chloramphenicol sodium succinate became a chemical known to the State of California to cause cancer for purposes of Proposition 65.
The effect of the listings is that anyone doing business in California must provide a clear and reasonable warning before they expose consumers to any of these chemicals. None of the five chemicals has an established safe harbor level for exposure, although Proposition 65 generally provides that there is no warning requirement if the exposures caused are so low as to create no significant risk of cancer.
Businesses have some breathing room to comply with the listings under Proposition 65’s safe harbor provision: No action can be taken by the Attorney General, district attorneys or private enforcers until 12 months after the listing of that chemical. Thus, businesses will have until September 13, 2014 (for chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid) and September 27, 2014 (for chloramphenicol sodium succinate) before any alleged failure to comply is legally actionable.
Proposition 65 applies to everyone in the supply chain. Manufacturers, distributors, suppliers, retailers and other entities doing business in California should take advantage of the safe harbor period and review the products they sell to determine whether chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, trichloroacetic acid or chloramphenicol sodium succinate is present in any of their products. If so, they should consider scientific testing to determine exposure levels. Possible action that can be taken to proactively handle the new listings include reformulation or providing a clear and reasonable warning to California consumers. Conkle, Kremer & Engel has substantial experience in helping businesses understand and comply with the requirements of Proposition 65 and other regulations to avoid exposure to liability, and to respond efficiently and effectively if a Notice of Violation is received.