California Prop65 details a consumer warning that is required if there is a reasonable likelihood of exposure to any Prop65 listed chemical. As Gatto noted, “There are more than 900 chemicals listed to date, and new chemicals are added regularly.” Any product manufacturer whose products are sold in California (or whose business is located in California) must supply this label. In areas where foreign languages are used, warnings must also be in those languages.
“To warn or not to warn, for lighting manufacturers that truly is the question,” Gatto said, adding, failure to warn (i.e. label) is virtually guaranteed to result in legal expenses associated with frivolous lawsuits from “bounty hunter” firms.
While warning labels add cost, take up valuable space on packaging, and may discourage some consumers from purchasing products they fear are “unsafe,” some manufacturers may find it less costly to label products based on a reasonable likelihood that a specific chemical may be present in order to reduce testing costs and avoid potential litigation.
According to Gatto, most Prop65 cases are brought under the law’s “bounty hunter” provision, which allows private plaintiffs to bring an action seeking penalties for alleged violations. Apparently every month, scores of new cases are filed – mostly by a dozen or so highly active private plaintiff groups – alleging failure to warn due to the presence of listed substances. When it comes to lighting, lead is the most commonly cited “chemical” in Prop65 lawsuits.
“Even if you believe your products do not contain lead, you may be at risk,” Gatto reported. “While lead in crystal or lead solder in art glass fixtures are obvious targets, even if your company does not offer these products you may be at risk of costly litigation. Lead is an environmental contaminant that can be found in small amounts in just about everything (it’s even in the air!). The burden is on the manufacturer to prove products do not require a warning label; therefore, lead or other Prop65 chemicals present in hardware or decorative components included with your lighting products – even in very small amounts – could result in a violation notice to your company.”
As of August 30, 2018, there will be a change made to the warning label. Even if through normal use a consumer may never actually be exposed, the new labels must state “product can expose” consumers to listed chemicals. This is a change from the current label, which simply indicates “product contains.”
Gatto warned that lighting manufacturers will no longer be able to use generic warning labels if the products contain (or may contain) a listed chemical. Under the new 2018 regulation, the actual chemical name(s) are required in the body of the warning label. Furthermore, multi-lingual packaging must have separate warnings in each language.
The other new development for 2018 is the proposed creation of a designated Web site that will be developed and maintained by OEHHA (Office of Environmental Health Hazard Assessment) to “provide the public information regarding chemicals, exposures, ways to minimize exposures, and other key information.”
Manufacturers will be required to publish information about product(s) that have a Prop65 warning label. “In addition to manufacturers, any person may also provide the lead agency with information to be considered for posting on the Web site about your product,” Gatto stated, warning, “One concern for [our] industry is the lack of details on how OEHHA will determine what information to add at the request of a third party, and how long it might take to have inaccurate or misleading information removed.”
The new OEHHA Web site will reportedly provide relevant test data (where available) including specific chemical content of product(s); information regarding exposures to listed chemicals, including common routes or pathways of exposure; strategies for reducing or avoiding exposure to listed chemicals; links to information compiled by other authoritative entities; and reasonably available information concerning the anticipated level of human exposure to listed chemicals.
According to Gatto, OEHHA may request product information from a business, manufacturer, producer, distributor, or importer, but based on industry feedback the final regulation specifies that manufacturers are not required to do additional testing purely for the purpose of responding to a request from OEHHA.