NSL Tech Talk

Tech Talk – Worth the Time

In a series of Zoom sessions, NSL Analytical features topics to make business easier for its material testing customers.  To be clear, NSL Analytical is the first to tell you, they are NOT attempting to give Proposition 65 legal advice.  Instead, NSL is sharing its experience with material testing and with compliance to prop 65.   In a January 14 Tech Talk, NSL Analytical’s Dave van der Wiel and Sarah Baskerville Speak on what you should know about Prop 65 and your products.

Prop 65 is not just a regulation that protects consumers against unwitting exposure to harmful chemicals.  Prop 65 has become a lucrative money machine for a few singularly focused law firms.  Out of 896 Proposition 65 cases closed by judgment or settlement in 2019, only one case was filed by the California Attorney General.  The balance of Prop 65 cases closed in 2019 – roughly 895 cases – were filed by only thirty law firms.  The fees and penalties in those cases amounted to approximately thirty million dollars.  That makes businesses selling products sans warning labels a litigation target.    For many manufacturers and distributers, the cost of litigation makes Prop 65 compliance critical.  In order to understand the requirements of Prop 65, we should first quickly cover the proposition.

What is Prop 65?

The official name of Proposition 65 is  the Safe Drinking Water and Toxic Enforcement Act of 1986.  The proposition was designed to protect California’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm.  Businesses whose products are distributed to Californians, regardless of where they are manufactured, are required to inform Californians about exposures to listed chemicals.   If you produce or import products containing any of the nearly 1000 chemicals, compounds and mixtures on the proposition 65 list, you may need to have a printed warning on your product.

Chemical analysis reports from an accredited test laboratory are critical for

  1. Many vendor approval processes.
  2. Supplying information that informs you how to comply with labeling requirements.
  3. Defend your product against predatory litigation.
  4. To timely respond to 60 day notices, and
  5. To supporting litigation arguments, if necessary.

Knowing what is and what is not factual about Proposition 65, is a great start to understanding the requirements.  The NSL Prop 65 Zoom session explores Four Widespread misconceptions related to Prop 65, and how to protect your business against predatory litigation.

Misconception #1: Prop 65 requires proof that a product does not contain any of the approximately 900 listed chemicals.

Proposition 65 was conceived to limit exposure to the listed chemicals.  It does not require total elimination of all listed chemicals.  Obviously, if your product does not contain chemicals on the Prop 65 list, your product is unlikely to need the warning label.   An easy way to check whether your product may contain chemicals on the prop 65 warning list is a commonsense series of questions.  Ask yourself these simple elimination questions:  Is my product an industrial process?  Is my product an emissions source?  Is my product radioactive?  Is my product a therapy?  Is my product electronic?  If you answer no to each of these questions, you have eliminated 50 items on the Prop 65 list.

For more information on practical Prop 65 elimination, visit NSL Analytical today.  You can discuss your product with an experienced professional who can offer guidance and tools to help you navigate the testing needs of your products.

Misconception #2: The proposition dictates the maximum amount of listed chemicals that may be in your product.

As mentioned earlier, Proposition 65 places safe harbor limits on the exposure consumers are allowed to be subjected to per day.  It does not place limits on contents of your product. The conversion from exposure into allowable content levels is not based on cause and effect  in California court cases.  Instead, the courts defer to recognized authoritative bodies to establish composition limits.  In spite of Prop 65 not setting composition limits, cases consistently find issue with 1,000 ppm.  Knowing courts are consistently ruling based on this, any product containing these quantities should reflect it in a warning label.

Misconception #3: Proposition 65 places the same chemical restrictions on all products. 

Remember that Proposition 65 limits exposure per chemical.  It is not a blanket amount. The exposure limits range from 8.7 µg per day, as in Dibutyl Phthalate to 2,200 µg per day of Diisodecyl Phthalate.  The good news is that NSL Analytical Services is experienced in which tests reveal the presence of commonly occurring restricted chemicals in a diverse range of products.

Misconception #4: A Prop 65 Certificate is proof of compliance with the regulation.

Sadly, there is no “Prop 65 Certificate”.  There is a test report from an accredited laboratory such as NSL Analytical Services.  The test report will only report on the substances you requested testing on.  It will not certify that substance is the only one of concern with regard to proposition 65.   Neither will the test state that all products from the named manufacturer or distributor are representative of the test samples listed in the report.

Material Test Reports from NSL

An NSL Analytical Services test report results can deliver information you need to make product decisions, if done early enough in the manufacturing process.  At a worst case scenario, the test results can be used with your defense in court.  We hope it never comes to that. Find out more about our services related to Proposition 65 testing and consultation.  Contact NSL Analytical for information and guidance on Prop 65 today.