12 May 2017
California’s Proposition 65 List Continues to Grow
California’s Office of Environmental Health Hazard Assessment recently determined to add glyphosate 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 (Proposition 65). The effective date of this action will be determined following a decision from the California Court of Appeal regarding a request for a stay in an on-going legal case.
OEHHA has also announced its intention to list pentabromodiphenyl ether mixture [DE-71 (technical grade) as a chemical known to the state to cause cancer (comments on this proposal are due by 5 June). This chemical has historically been used as an additive flame retardant, especially for polyester foam commonly used in furniture. U.S. production and use of pentabromodiphenyl ether mixtures was voluntarily phased out around 2004, however.
Additionally, OEHHA is considering the addition to the Proposition 65 list of five chemicals under the authoritative bodies mechanism, which relies on the identification by certain authoritative bodies of chemicals deemed to cause cancer or reproductive toxicity. They include perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), vinylidene chloride (1,1dichloroethylene), cobalt metal and pentabromodiphenyl ether mixture [DE71 (Technical Grade)]. OEHHA has already issued a notice of intent to list the first two chemicals and faces deadlines ranging from 21 September 2017 to 14 March 2018 to decide whether to issue similar notices for the other three chemicals.
Beginning one year after a chemical is added to the Prop 65 list businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to that chemical unless they can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm. This warning can be given in several ways; e.g., labelling a consumer product. However, no such warning is required if exposure to a chemical occurs at or below any established safe harbour level. Prop 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water, a requirement that kicks in 20 months after a chemical is listed.