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

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...