In 1986, California voters approved the Safe Drinking Water and Toxic Enforcement Act to address growing concerns about toxic chemicals in consumer products and the environment. Better known as Proposition 65, the law requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. The list must be updated once a year, and it now contains nearly 900 chemicals.
The Office of Environment Health Hazard Assessment (OEHHA) administers Prop 65 and evaluates all currently available scientific information to determine which substances should be placed on the Prop 65 list of “toxic” chemicals.
Products containing any of the chemicals on the Prop 65 list must carry a “clear and reasonable” warning to notify consumers that a listed chemical is present in the product. This warning must be made available to the consumer prior to exposure. The warning must be provided unless the exposure is low enough to pose no significant risk of cancer or birth defects or other reproductive harm. However, OEHHA has established these No Significant Risk Level exposure thresholds for only about a third of the listed chemicals.
Nearly 40 years after its enactment, this California law remains a challenge for home furnishings companies. In 2011, when OEHHA listed a common flame retardant chemical used in upholstered furniture at that time, Tris (1, 3-dichloro-2-propyl) phosphate or “TDCPP,” hundreds of manufacturers were issued notices of violation for failing to warn consumers. Over the years, Prop 65 has spawned its own cottage industry of professional plaintiffs, since the law allows these “citizen enforcers” to collect settlement fees and attorney fees for filing cases. In 2023, the average cost for a manufacturer to settle a Prop 65 notice of violation was $97,000 and the average cost of an out-of-court settlement was $25,000.
AHFA has developed a comprehensive Prop 65 Compliance Toolbox to assist companies with labeling programs.
To help member companies determine their compliance obligations under Prop 65, AHFA developed a workbook that includes the top 20 OEHHA-listed chemicals considered most likely to be in residential furniture. The Alliance hired Bureau Veritas and Intrinsik to conduct exposure assessments for these chemicals. The workbook contains the results of the research, testing and technical analysis. It is downloadable from the Member Toolbox at right.
Directly tied to AHFA’s advocacy on this regulation was OEHHA’s adoption of a furniture-specific “safe harbor” warning. The furniture safe harbor is unique among all Prop 65 warnings for three reasons.
First, it stipulates that a separate Prop 65 label is not required on residential furniture. Instead, manufacturers may include the Prop 65 warning on an existing product label, such as the manufacturing label for wood products or the flammability label for upholstered products.
Second, the furniture safe harbor requires retail sellers to share in the responsibility of alerting consumers to the presence of chemicals in furniture products.
Finally, the furniture safe harbor label needs to name one (1) specific chemical that is listed by OEHHA as a carcinogen or a reproductive toxicant, not two, as on other labels.
AHFA commissioned Amy P. Lally of Sidley Austin LLP, considered California’s foremost legal experts on Prop 65, to develop an overview of the requirements outlined in the furniture “safe harbor” warning. Lally’s “white paper” – also available exclusively to AHFA members in the Member Toolbox on this page – provides authoritative guidance on the content of the required warning, a checklist of topics to review with retail partners, sample labels and a sample notice letter to use with retailers.
This “white paper” was updated in October 2024 to reflect a June 2024 notice from OEHHA advising that identifying "wood dust" on a Prop 65 warning is neither required or desired. See page nine (9) of the updated “white paper”, which can be viewed and downloaded from the Member Toolbox section on the righthand side of this page.
AHFA will continue providing members with unparalleled legal support and expert advice as new Prop 65 compliance issues emerge. (October 2024)