The February 2013 issue of PPB magazine featured an article, “Nailed By A Bounty Hunter—A California Prop 65 Violation Can Cost Your Company,” by Leeton Lee, vice president of regulatory compliance and general counsel for Oxnard, California-based supplier ETS Express, Inc. (UPIC: ETSE). In his article, Lee, a member of PPAI’s Product Responsibility Action Group (PRAG), wrote about California’s Prop 65 and how to avoid running afoul of its regulations. The piece prompted considerable commentary from PPAI members online, and a follow-up from Lee.
This is a fascinating—and scary—article. Of course, if you are a California-based company, and selling to a California-based company, then I can see how this is an issue that you voluntarily face. But how on earth is a distributor supposed to know whether a product might be distributed in California?
Should manufacturers and distributors provide warnings at the time of the order, saying something like: “These products are deemed safe everywhere except maybe California. If you intend to distribute these products in California, you will be subject to an additional testing /certification surcharge.”
I imagine this could be an enormous problem for everyone selling anything, anywhere. All it would take would be for the end customer to send one of something to California.
Maybe something less inflammatory, such as: “These products were manufactured to the high standards established by the United States Consumer Product Safety Improvement Act, or CPSIA. If you intend to distribute these somewhere with more restrictive regulations, then please be sure to provide those regulations at the time you are placing the order.”
Of course, all of us in the United States want safe products, and we work to abide by the Consumer Product Safety Improvement Act (CPSIA). But must we now become experts in the unique laws of all 50 states?
Rochester Hills, Michigan
It’s impossible for companies in our industry to know (1) if all of our products are fully compliant under Prop 65; and (2) if they will be shipped to California (most of the time, the end-buyer clients will ship products to their clients or satellite offices in California without our knowledge).
The PPAI PRAG group often uses the advice “make yourself a hard target” when giving webinars and courses on product safety and compliance. The more risk you reduce in your product compliance program, the smaller the target you become to regulators and “bounty hunters.” Risk reduction is the key goal in every company’s product compliance program, whereas risk elimination is virtually impossible. So with Prop 65, the best practice is to simply assume that your product will end up in California and work with suppliers who have the testing data to share with you to confirm that they have tested for the “usual suspects” (meaning, the usual Prop 65-listed chemicals that are often found in the product in mind). Eliminating hazards in the early stages of design/production is a huge step toward compliance and gaining confidence in your products.
Applying warning labels does have its drawbacks because clients and consumers outside of California may be alarmed by them and this can hurt future orders. Most California residents are used to the labels because they’re everywhere. Don’t forget, most warning labels must be precise in the wording—Prop 65 warning labels are no exception, and the location of placement must be in line with regulatory requirements.
While on the issue of warnings, warning labels do not always shield a manufacturer or distributor from liability. This is very true with CPSIA and most state regulations. The old safety adage “you cannot warn away known hazards” rings true under all federal safety schemes. California, under Prop 65, and Illinois (lead law; 40 ppm) allow for warnings so long as the product still complies with applicable federal regulations.
Unfortunately, all of us in the consumer products world will be continuously challenged by new and more stringent regulations as time goes on. Various states, such as Washington, Maine and California, have new regulations that will require manufacturers to register “chemicals of high concern” used in their products if such products are sold in their state. The Washington and Maine regulations apply to children’s products, but the California Green Chemistry Initiative applies to all products. If it makes you feel any better, the European Union has way more regulations than we have here in the U.S. for product safety and environmental protection.
For more information about Cal Prop 65 and other state regulations, as well as on other product safety issues, PPAI has an excellent library of Best Practice Guides and past webinars available on its website. I also suggest attending the PPAI Product Safety Summit in Chicago on August 14-15, 2013, for an incredible day and a half of education in product safety and responsible sourcing. The summit, together with the PPAI North American Leadership Conference, held in conjunction with the safety summit, provide a great networking opportunity for those who attend.
Vice President of Regulatory Compliance and General Counsel
ETS Express, Inc.