Plastics & vinyl chemical added to Prop 65 list

By CMTA Staff

Capitol Update, Jan. 23, 2014 Share this on FacebookTweet thisEmail this to a friend

On December 20, 2013, the California Office of Environmental Health Hazard Assessment (OEHHA) announced that it will add diisononyl phthalate (DINP) to the list of chemicals known to the State to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (known as Proposition 65).  DINP is used in a wide array of soft plastics and vinyl. 

Prop 65 requires companies to warn consumers prior to exposing them to chemicals on OEHHA's list of chemicals known to the State of California to cause cancer, birth defects, and/or other reproductive harm. Liability for Prop 65 warnings applies at nearly all levels of a finished product’s supply chain.  Once a chemical appears on the Prop 65 list, companies have one year to comply with the law with respect to that chemical. Companies found to be in violation face steep penalties of up to $2,500 per violation.  Additionally, Prop 65 allows private plaintiffs to bring actions alleging non-compliance based on a minimal showing of possible violation, at which point the burden to prove compliance shifts to the defendant.

DINP is already banned for use in "child care articles" in any amount greater than 0.1 percent as follows: (1) in a children's toy that can be placed in a child's mouth, and (2) in child care articles. "Child care articles" are defined as consumer products that are designed or intended by the manufacturer for a child who is three years old or younger, to facilitate sleeping or feeding, or to help a child who is sucking or teething.

DINP is a phthalate that is used to increase the plasticity or fluidity of a material. With its listing, DINP joins five other phthalates on the California list of chemicals that require a warning prior to an exposure.  Further, while use of each of these phthalates in children’s toys is already restricted in the United States and the European Union, California’s Prop 65 applies to a much wider array of consumer products, including vinyl accessories, soft plastic components, plastic accessories, and packaging for products intended for adult use.

Phthalates have been a focus of litigation by the plaintiffs' bar in recent years.  Based on the pattern of private plaintiff enforcement actions, plaintiffs appear to test products for each of the listed phthalates. Plaintiffs have most likely already begun testing for DINP since the December 20, 2013 listing of the chemical. The addition of DINP to the list therefore poses problems not only for companies that do not provide Prop 65 warnings and have to-date escaped the notice of the plaintiffs’ bar, but for those who in opting to "reformulate" products containing previously listed phthalates switched over to using DINP as a substitution.

DINP is only one of several chemicals added to the Prop 65 list each year.  It behooves each manufacturer to review this list on a regular basis.

To download the Prop 65 list, click here: http://oehha.ca.gov/prop65/prop65_list/Newlist.html

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