California's OEHHA Adds New Chemical to Proposition 65 List, Setting up Product Manufacturers/Distributors as Targets to Eager Plaintiffs' Bar

  

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 (widely known as Proposition 65). DINP is used in a wide array of soft plastics and vinyl. The listing was effective December 20, 2013. Exposures to DINP may now require a Proposition 65 warning, as discussed below.

Proposition 65 requires companies to warn consumers prior to exposing them to chemicals on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and/or other reproductive harm. Liability for Proposition 65 applies at nearly all levels of a finished product’s supply chain. Once a chemical appears on the Proposition 65 list, companies have one year to comply with Proposition 65 with respect to that chemical. Companies found to be in violation of Proposition 65 face steep penalties of up to $2,500 per violation. Additionally, Proposition 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 as a plasticizer 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. The current list includes Di-n-butyl phthalate (DBP), Di-n-hexyl phthalate (DnHP), Butyl benzyl phthalate (BBP). Di (2-ethylhexyl) phthalate (DEHP), and Di-isodecyl phthalate (DIDP). 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 Proposition 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 begun testing for DINP immediately since the December 20, 2014 listing of the chemical. The addition of DINP to the list therefore poses problems not only for companies that do not provide Proposition 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.

Companies that manufacture, distribute or retail products containing phthalates or that they suspect may contain phthalates should strongly consider retaining counsel experienced with identifying and working with expert consultants to assess risks of costly and complicated legal action and to determine the best ways to avoid those risks. Greenberg Traurig has extensive experience working with companies to find a balanced approach to compliance with Proposition 65.

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