What’s in Your Packaging? Prop 65 Applies to PVDC

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Can your product wrap subject you to Proposition 65 warning requirements?  You bet.  California has added vinylidene chloride to its long list of chemicals to which Proposition 65 applies, effective on December 29, 2017.  The Office of Environmental Health Hazard Assessment (OEHHA) has not established a safe harbor level for vinylidene chloride, although that remains under consideration.

Vinylidene chloride is used in the production of polyvinylidene chloride (PVDC) copolymers. PVDC was developed by Dow Chemical Company, and was at one point used in the production of the popular food wrap product, Saran Wrap. PVDC has characteristics ideal for food packaging because it has low permeabiltiy to water vapor and gasses. While use of PVDC in Saran Wrap was later phased out due to cost and environmental concerns, other copolymers of vinylidene chloride are still commonly used in food packaging, including box overwrap, vertical form fill seal, horizontal form fill seal, and pre-made bags. Vinylidene chloride is also extensively used in a variety of other packing materials, as flame retardant coating for fiber and carpet backing and in piping, coating for steel pipes, and adhesive applications. Other common consumer products that may contain vinylidene chloride include cleaning cloths, filters, screens, tape, shower curtains, garden furniture, artificial turf, doll hair, stuffed animals, fabrics, fishnet, and shoe insoles.

Manufacturers, distributors and retailers are required to provide Prop 65 warnings to workers and consumers who are exposed to vinylidene chloride.  Companies have one year from the listing date to comply with Prop 65.  Companies that have not reformulated their products to remove vinylidene chloride, or that fail to provide a Proposition 65 warning on products containing it, by December 29, 2018 are at risk of receiving a “Notice of Violation” from private enforcers seeking to gain thousands of dollars in penalties and attorneys’ fees.  A Notice of Violation typically precedes a lawsuit for violation of Proposition 65.

The listing of vinylidene chloride as a chemical known to cause cancer by OEHHA is a reminder that not only product contents, but also packaging materials, are included within Prop 65 compliance requirements.  As we previously reported, since December 2014, products sold in California that contain diisononyl phthalate (DINP) have required a Proposition 65 warning.  DINP is found is many soft plastic and vinyl products, and purported violations have been found in seemingly innocuous packaging, such as gift bags for cosmetic products.

Conkle, Kremer & Engel has many years of experience advising clients with respect to Proposition 65 and other regulatory compliance issues. CK&E attorneys help clients stay out of legal crosshairs by working with them to ensure their products continue to meet all legal requirements, and helping them plan for foreseeable changes in the law.

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California Proposition 65 Warnings for DINP Exposure are Required Soon

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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.

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