(Editor’s note: The International Sleep Products Association sent the following ISPA Insider Extra to its members on July 20.)
Reminder of California’s Prop 65 Requirements
ISPA mattress manufacturing and supplier members are reminded that companies that sell or make products in California must meet the requirements of a state law called Proposition 65 (or Prop 65). Prop 65 is a California law passed by a direct voter initiative in 1986 that requires California manufacturers and retailers of products sold in California to notify workers, communities and consumers under certain circumstances if chemicals that the state has concluded have the potential to cause cancer, birth defects or reproductive harm are present in their products, workplace environment or retail store. Link to the state of California Prop 65 webpage.
Over 800 different chemicals are currently listed under Prop 65, and California from time to time adds more chemicals to this list. Link to the current Prop 65 chemicals list.
Prop 65 applies to all materials used in the mattress manufacturing supply chain. In addition, Prop 65 would also apply to products and materials used in the workplace by companies with manufacturing or other operations in California even when those products or materials do not become part of the finished product (such as cleaning supplies).
For these reasons, ISPA encourages its members to:
- Review the Prop 65 list and the Prop 65 requirements carefully to understand your responsibilities
- Consult with legal counsel familiar with the requirements of Prop 65 and other federal and state product safety laws for advice on what, if any, action your company should take with regard to the raw materials you use and the products you make or sell in California and elsewhere, and any notice you must provide your customers or workers
- Communicate with your component and materials vendors regarding the requirements of Prop 65
Prop 65 notices are found on a wide variety of everyday products, including cosmetics, computer keyboards, luggage, extension cords, sunscreen, food products, clothing, new cars and trucks – even roasted coffee and alcoholic beverages – and workplaces in California where these products are sold or manufactured. Either the state or (more frequently) private parties (usually plaintiffs’ attorneys) may enforce the requirements of Prop 65. Failure to provide Prop 65 notices when required can expose affected manufacturers and retailers to substantial legal and financial liabilities. The average fine or settlement in 2011 for Prop 65 claims was approximately $65,000.
In this regard, we have learned that some types of non-fire-retardant polyurethane foams used to make mattresses may inadvertently contain trace amounts of a fire retardant chemical called TDCPP, a chemical that was added to the list of Prop 65 chemicals on October 28, 2011. For some Prop 65-listed chemicals, California has established a so-called “safe harbor” exposure level. A manufacturer or retailer has no Prop 65 notice obligations if products or materials provide less than the safe harbor level of daily exposure for a listed chemical. California has proposed such a “safe harbor” exposure level for TDCPP of 5.4 micrograms per day. To read a copy of that proposal click here.
It is unclear when (if ever) California will finalize this proposal or whether the final exposure level that California sets will be more, less or the same as the level proposed. The presence of this chemical in a product made or sold in California may require product, store or workplace labeling under Prop 65. If so, companies have until late October 2012 to provide such notice for TDCPP. As we note above, ISPA encourages its members to consult with legal counsel regarding the impact of Prop 65 on their business activities.
We will keep you informed if we learn further information regarding this subject.
