What’s in Your Product?

Prop 65 gives food for thought
Paul R. Gary
May 27, 2017
COLUMN : Legal | Strategies & Practices

California’s Proposition 65 is hardly new and it is relatively well-known that it requires manufacturers to establish potential warning label requirements for, among other things, all goods sold for consumer use in California. But Prop 65 is also recognized as a ready source of liability in the event of a compliance failure. These claims are pursued by the seemingly endless number of consumer-protection conscious plaintiff attorneys in our most populous state.

The basic idea of Prop 65 is that the State of California has a committee of scientists that adds to a long list of chemicals “known to the State of California to cause cancer or reproductive toxicity.” The presence of a chemical on the list triggers the Prop 65 rules. Companies that are involved in the sale of a consumer good in California that contains a listed chemical must work through the attendant regulations to determine if the product requires a label. Indeed, the regulations within Prop 65 have been amended and the new rules will become effective in the not-to-distant future.

Now, thinking of the qualifier “known to the State of California to cause cancer or reproductive toxicity,” a question finally dawned on me. The effect of the presence of a chemical on the Prop 65 list most certainly is a California issue. But, does the problem end at the California border?

The warning is not “known by the State of California to cause cancer or reproductive toxicity only in California.” The repercussion from the fact that the California scientists concluded that a chemical should be listed as a carcinogen or reproductive toxin extends beyond California and requires your judgment.

Should you sell a product with a Prop 65 listed chemical, one might say that California is the least of your worries because it provides a safe harbor for manufacturers in the form of its overall regulatory scheme and option for prescribed warnings. But, take the isolated fact that you now know a team of purportedly qualified scientists has convinced the State of California that a chemical in your product causes cancer or reproductive harm.

Now, the presence of a carcinogen or reproductive toxin in your product may never represent an exposure that constitutes a scientifically cognizable risk. However, reviewing the elements within that last sentence foreshadows the seriousness of the question.

What of the manufacturer who cannot answer in detail the question “What’s in your product?” The purchase of a compound used in manufacturing may not include an identification of every chemical component within the compound. How, then, do you determine if your product should be a candidate for a Prop 65 or other warning? To what lengths should a manufacturer go to answer these questions?

I know—long on questions, short on answers. Still, the questions are real and the answers require thought and strategy.

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.