Starting December 20, 2014, products sold in California that contain diisononyl phthalate (DINP) will require a Proposition 65 warning.
DINP is found is many soft plastic and vinyl products. DINP is used as a plasticizer in a wide variety of products including apparel, footwear, sporting goods, gloves, fashion accessories, school supplies, shower curtains, bath mats and other home accessories, garden hoses, toys, vinyl flooring, and electrical wire and cables.
DINP was added to the Proposition 65 list of chemicals on December 20, 2013 as a chemical known to the State of California to cause cancer. By law, the warning requirements go into effect one year after the listing. Accordingly, the Proposition 65 warning requirement for products causing an exposure to DINP will start on December 20, 2014.
Businesses that manufacture, sell, or distribute products in California containing DINP are required to provide a warning to consumers that the product contains a chemical known to the State of California to cause cancer. The warning is required unless the exposure is so low as to pose no significant risk to cancer. The Office of Environmental Health Hazard Assessment (OEHHA) has not established a safe harbor level for DINP.
The phthalate DINP is presently banned in certain children’s toys and products in concentrations of greater than 0.1 percent under the Consumer Product Safety Improvement Act (CPSIA) of 2008. Other phthalates that are already on the Proposition 65 chemical list include di (2-ethylhexyl) phthalate (DEHP), di-n-butyl phthalate (DBP), di-n-hexyl phthalate (DnHP), butyl benzyl phthalate (BBP) and di-isodecyl phthalate (DIDP).
Companies that have not reformulated their products to remove DINP, or that fail to provide a Proposition 65 warning on products containing DINP, by December 20, 2014 are at risk of receiving a “Notice of Violation” from private enforcers seeking tens of thousands of dollars in penalties and attorneys’ fees. A Notice of Violation typically precedes a lawsuit for violation of Proposition 65.
Conkle, Kremer & Engel has extensive experience in the area of Proposition 65. CK&E provides businesses with legal counseling and guidance on compliance with Proposition 65. CK&E also regularly assists businesses in responding to Notices of Violation and defending claims for violation of Proposition 65 in litigation.