United States: Coming Christmas 2014: California Adds Another Phthalate Chemical To Its Proposition 65 List

Last Updated: January 14 2014
Article by Robert L. Falk and William F. Tarantino

With the 2013 holiday season behind us, the State of California's Office of Environmental Health Hazard Assessment (OEHHA) already appears to be looking forward to Christmas 2014. It has just wrapped and put a bow on next year's Christmas present for Proposition 65 "bounty hunter" plaintiffs' lawyers by adding the chemical diisononyl phthalate (DINP) to the Proposition 65 list. Under the statute, Proposition 65 warning requirements will automatically become applicable to consumer products containing DINP that are sold in California (or by the Internet to Californians) one year following the effective date of the listing, December 20, 2014.

Businesses that choose not to provide warnings for DINP-containing products sold in California after the Proposition 65 warning requirement for this chemical becomes effective just before next Christmas are likely to receive 60-Day Notice letters from the same Proposition 65 plaintiffs that have brought hundreds of cases on previously listed phthalates such as Di(2-ethylhexyl)phthalate (DEHP), butyl benzyl phthalate (BBP) and di-n-butyl phthalate (DBP) in recent years. In fact, in addition to providing the plaintiffs' lawyers with millions in attorneys' fees, settlements of those claims largely resulted in reformulation commitments that required the settling business to find substitutes for DEHP, DBP and BBP in the soft plastic and vinyl components of their products. One of the most readily available substitute phthalates is DINP.

Whether a Proposition 65 enforcement action can be brought against a company for exposure to a chemical from a product manufactured before the listing date is an unresolved issue. While the question has been raised in the recent litigation regarding fire retardants in furniture, neither the California Attorney General nor a judge has yet offered an opinion on it. Whether a company can be liable for a product that left its hands prior to the effective date of the warning requirement – one year post-listing – is similarly uncertain. Businesses that wish to avoid having to litigate these issues of first impression, or a potential "no significant risk" defense based on the amount of chemical exposure being below the warning threshold, may wish to implement a Proposition 65 warning program for products containing DINP as soon as possible.

Unlike the case with DEHP, DBP and BBP, the new Proposition 65 listing of DINP is only with respect to its effects as a carcinogen, not as a reproductive toxicant. Interests arguing against the DINP listing argued that DINP's mechanism of action was such that it would not produce cancer in humans, but OEHHA's carcinogen identification committee rejected that argument as a basis not to proceed with the listing. Parallel arguments concerning the lack of carcinogenicity in humans of DEHP were the basis of a Court of Appeal decision upholding a declaratory relief action brought by businesses in Baxter v. Denton, 120 Cal. App. 4th 333, 15 Cal. Rptr. 3d 430 (2004). Hence, there may be an opportunity for those businesses willing to litigate based on the science to avoid the effect of the new DINP listing here.

While the new Proposition 65 listing of DINP has potentially significant implications for many manufacturers, distributors and retailers of consumer products made of vinyl or soft and pliable plastics, for those that get on top of it early enough to deplete older inventories before the next holiday season approaches, the possibility of further reformulation by substituting unregulated phthalate compounds for DINP and other regulated phthalates remains potentially viable. Since implementation of the federal Consumer Product Safety Improvement Act of 2008 (CPSIA), companies making mouthable children's toys and child care articles have been required to limit DINP, along with DEHP, BBP, DBP and two additional phthalates (DIDP and DnOP) in their products to levels of 1,000 parts per million or less each – the same level that has been utilized as a reformulation standard in virtually all previous Proposition 65 settlements on phthalate-related claims.

Morrison & Foerster LLP has advised clients on Proposition 65 and represented hundreds of companies in Proposition 65 litigation and settlement negotiations since the inception of this statute in the 1980s. It continues to do so today, including with respect to phthalate-related claims. It also assists businesses on CPSIA, Green Chemistry, and other consumer claims and product liability issues.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert L. Falk
William F. Tarantino
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions