California Proposition 65: Reformulation of Chemicals in Consumer Goods

SafeGuardSHardgoods, SoftlinesJune 18, 2024

SG 95/24

Multiple settlements have been reached for a variety of products containing Prop 65 chemicals. Many of these agreements allow a Prop 65 warning as an alternative.

California Proposition 65 (Prop 65) is the ‘Safe Drinking Water and Toxic Enforcement Act of 1986’, a ballot initiative passed overwhelmingly by Californian residents in November 1986. It requires the state to publish a list of chemicals that are known to cause cancer, birth defects or reproductive harm. First published in 1987 and updated at least once per year, the list has evolved to approximately 900 chemicals.

In Prop 65, one important provision for companies doing business in California is to provide a clear and reasonable warning before knowingly and intentionally exposing anyone to a listed chemical. Unless exempt, businesses have 12 months to comply with this requirement once a chemical is listed.

In this communication, we summarize multiple recent settlements involving a range of consumer goods containing the following chemicals:

Table 1. Reformulation of BPA in consumer goods

Entry	Scope	Unless stated, reformulation/warning for BPA
1	Athletic shirts and leggings made primarily of polyester with spandex	≤ 10 ppb, otherwise warning (defendant must not replace BPA with any other phenol such as BPS)
2	Phone cases	≤ 3 μg (wipe test), otherwise warning
3	Phone cases (products were alleged to contain BPA)	Reformulated products are either BPA-Free Products or Reformulated Products, otherwise warning BPA-Free Products Not detected Reformulated Products BPS, BPF and BPAF not detected
4	Storage containers/boxes for drill bits	≤ 3 μg (wipe test), otherwise warning
5	Storage/organization bins/containers including the bin/container lids	≤ 3 μg (wipe test), otherwise warning
6	Strap sandal shoes	Warning
7	Tablet cases	≤ 3 μg (wipe test), otherwise warning
8	Women's chest plates	Warning

Table 2. Reformulation of consumer goods containing one or more phthalate

Entry	Scope	Reformulation/warning
1	Bags (fashion)	≤ 1000 ppm each of DEHP and DBP, and ≤ 1.0 μg each of DEHP and DBP (NIOSH 9100) Otherwise warning
2	Booster cables and carry case products	≤ 1000 ppm each of DEHP, DBP, DINP, DIDP, DnHP and BBP
3	Cases for eyewear glasses	≤ 0.1% each of DEHP and DINP
4	Children's coloring sets	≤ 0.1% DIDP
5	Children's pool rings	≤ 0.1% DIDP, otherwise warning
6	Desk racks	≤ 1000 ppm DEHP, otherwise warning
7	Girls’ shoes	≤ 0.1% each of DEHP, BBP, DBP, DIDP, DINP and DnHP, otherwise warning
8	Hacksaws	≤ 1000 ppm DEHP, and ≤ 100 ppm Lead, or ≤ 1.0 μg Lead (NIOSH 9100) Otherwise warning
9	Hammers	≤ 1000 ppm each of DEHP and DBP, and ≤ 1.0 μg each of DEHP and DBP (NIOSH 9100) Otherwise warning
10	Patriotic door banner exterior bags	≤ 0.1% DEHP, otherwise warning
11	Push up bars (exercise)	≤ 0.1% DEHP, otherwise warning
12	PVC fabrics for pet beds	≤ 0.1% DINP, otherwise warning
13	TV antennas	≤ 1000 ppm DEHP, otherwise warning
14	Vases	≤ 0.1% DEHP, otherwise warning
15	Waste bag dispensers for pets	<0.1% DEHP
16	Vinyl tarps	< 0.1% each of DEHP, DBP, DINP, DIDP, DnHP and BBP, otherwise warning
17	Watch box organizer cases and vinyl bags	≤ 0.1% DEHP, otherwise warning
18	Waterproof tubes of adhesive (tubes of waterproof adhesive for inflatable boats)	≤ 0.1% DEHP, otherwise warning
19	Water sports ball sets	≤ 0.1% DIDP, otherwise warning

Table 3. Reformulation of lead in consumer goods

Entry	Scope	Reformulation/warning for lead
1	Cellphone wallet cases	Any accessible component ≤ 90 ppm, and Any surface ≤ 1.0 μg (NIOSH 9100) Otherwise warning
2	Ceramic birdfeeders with exterior designs	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100) Otherwise warning
3	Ceramic blessing trees (decoration item)	≤ 4.0 μg (NIOSH 9100), otherwise warning
4	Ceramic cleaning brush holders with exterior designs	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100) Otherwise warning
5	Ceramic fragrance warmers with exterior designs	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm, otherwise warning
6	Ceramic honey bees (decoration item)	≤ 4.0 μg (NIOSH 9100), otherwise warning
7	Ceramic lamps with exterior designs	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100) Otherwise warning
8	Ceramic pet jars with exterior designs	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100)
9	Ceramic pitchers with exterior decorations (flower vases)	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100) Otherwise warning
10	Coated wire products	≤ 90 ppm, otherwise warning
11	Cup and saucer sets	≤ 1.0 μg (NIOSH 9100), otherwise warning
12	Food canisters	≤ 1.0 μg (NIOSH 9100), otherwise warning
13	Ground clamps	≤ 100 ppm, and ≤ 1.0 μg (NIOSH 9100) Otherwise warning
14	Leaded crystal glasses and other leaded crystal products (used as trophies, gifts, awards, souvenirs, mementos, or keepsakes at golf clubs, other sporting clubs or charitable or social events)	Warning
15	Lead weights, moldable lead, lead putty (fishing accessories)	≤ 0.1%, otherwise warning
16	Measuring pitchers	≤ 1.0 μg (NIOSH 9100), otherwise warning
17	Metal and glass mirrors with exposed soldered joints containing lead	Any accessible component ≤ 90 ppm, and Any surface ≤ 1.0 μg Lead (NIOSH 9100)
18	Metal and glass ornaments	Any accessible component ≤ 90 ppm, and Any surface ≤ 1.0 μg (NIOSH 9100) Otherwise warning
19	Metal and glass sprayers (pump sprayers)	Any accessible component ≤ 90 ppm, and Any surface ≤ 1.0 μg (NIOSH 9100) Otherwise warning
20	Retractable indoor/outdoor clotheslines	Any decoration, colored artwork, designs and/or marking on the surface of the product ≤ 90 ppm Any surface ≤ 1 μg (NIOSH 9100)
21	Stackable ceramic beverage cups	≤ 1.0 μg (NIOSH 9100), otherwise warning
22	Teapots	≤ 1.0 μg (NIOSH 9100), otherwise warning

Table 4. Reformulation of NDMA in consumer goods

Entry	Scope	Reformulation/warning for NDMA
1	Latex yoga mats	< 100 ppb n-nitrosodimethylamine (NDMA) using ISO 19577-2019, or < 10 ppb NDMA using ASTM F1313-90 (2011) or EN-71-12:2013 modified

Table 5. Reformulation of chromium (VI) compounds in consumer goods

Entry	Scope	Reformulation/warning for chromium (VI) compounds
1	Leather satchels	Warning
2	Messer wool fedoras (hats)	Warning

Table 6. Reformulation of PFOA in consumer goods

Entry	Scope	Reformulation/Warning for PFOA
1	Cooling hats (products were alleged to contain PFOA)	Contains no intentionally added PFOA and ≤ 100 ppm total organic fluorine (TOF), otherwise warning
2	Seat pads	Warning

It is interesting to note that there are several settlements involving BPA (Table 1). Several of these settlements use a wipe test for the reformulation of BPA in certain goods with the inclusion of a warning option, one settlement where the parties agreed to meet the reformulation standard for either ‘BPA-Free Products’ or ‘Reformulated Products’ with a warning as an alternative and one settlement where the reformulation is no more than 10 ppb BPA in athletic shirts and leggings made primarily of polyester with spandex. Under the terms of this agreement, the defendant must not replace BPA with any other bisphenols, such as Bisphenol S (BPS).

It is also worth noting that the settlement for NDMA in latex yoga mats has the reformulation option of less than 100 ppb NMDA using ISO 19577, or less than 10 ppb according to ASTM F1313 or a modified version of the EN 71-12 standard (Table 4).

Additionally, there are two settlements where the products were alleged to contain PFOA. One settlement resulted in a ‘warning’ for seat pad products, whereas the parties in the case for cooling hats agreed that these products are to contain no intentionally added PFOA and no more than 100 ppm total organic fluorine (TOF), with warning as an alternative option.

A Prop 65 settlement is a consent agreement between the parties named in the settlement and a party not named in a settlement is not bound by that settlement.

Abbreviations

Entry	Abbreviation	Phthalate	CAS
1	BBP	Butyl benzyl phthalate	85-68-7
2	DBP	Di-n-butyl phthalate	84-74-2
3	DEHP	Di(2-ethylhexyl)phthalate	117-81-7
4	DIDP	Di-isodecyl phthalate	68515-49- 1/26761-40-0
5	DINP	Diisononyl phthalate	---
6	DnHP	Di-n-hexyl phthalate	84-75-3

Companies doing business in California, USA, need to be aware of and comply with Proposition 65. Our California Proposition 65 services offer your organization analytical testing and consultancy services to evaluate your products for composition and to recommend a pathway to Prop 65 compliance. Contact us for more information or visit our website. In the end, it’s only trusted because it’s tested.

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