Weekly Compliance Digest - California Prop 65, Minnesota Chemicals of High Concern

September 23, 2016

In this edition of the Weekly Compliance Digest, we cover two updates from California and Minnesota affecting chemicals.

Article 6: Clear and Reasonable Warnings

What is it?

On August 30, 2016, California’s OEHHA announced that the Office of Administrative Law approved the adoption of amendments to Article 6, Clear and Reasonable Warnings, of the California Code of Regulations. The amendments include requirements regarding California Proposition 65 warnings.

“Proposition 65” (or Prop. 65) refers to California’s Safe Drinking Water and Toxics Enforcement Act of 1986. As part of Prop. 65, the California Office of Environmental Health Hazard Assessment (OEHHA), which is an agency within the California EPA (Cal/EPA), maintains a list of chemicals known to cause reproductive toxicity or cancer. The law requires companies to provide a warning, through signs or product labels, when they knowingly and intentionally cause an exposure to a listed chemical, and prohibits the discharge of listed chemicals into sources of drinking water.

Who is affected?

Companies selling products in the state of California that contain a chemical present on the Proposition 65 List.

What are the requirements?

The amendments include the following main provisions regarding warnings:

  • Warnings will have to contain the name of at least one substance that is listed under Prop. 65 (as opposed to simply warning about the presence of “a chemical” without naming it).
  • Warnings will have to include a pictogram (an exclamation point inside a triangle).
  • Warning statements will have to include the URL to the new Prop. 65 website, maintained by OEHHA, which provides additional information on listed substances.

According to a Chemical Watch article, a coalition of more than 200 industry groups is concerned with several provisions of the regulation. Karyn Schmidt of the American Chemistry Council (ACC) told Chemical Watch that the requirements “will simply exacerbate Proposition 65’s problems of overwarning, consumer confusion and rampant lawsuit abuse”.

“OEHHA’s new warning regulation does not remedy the fundamental problem with Proposition 65 labels: they fail to communicate risk to consumers,” added Ms Schmidt. And “requiring labels to arbitrarily list one or more chemicals and include a pictogram hazard symbol does nothing to improve the quality or the meaning of information conveyed to consumers,” she said.

What is next?

The regulation will be in effect as of August 30, 2018. In the interim, companies can comply with the provisions of the new regulation, or with the version of the regulation without the new amendments. This will allow for a reasonable transition period for businesses to begin providing warnings under the new provisions, according to OEHHA.

Minnesota Chemicals of High Concern List

What is it?

The Minnesota Chemicals of High Concern (CHC) list was created by the Minnesota Department of Health (MDH) as a result of the 2009 Toxic Free Kids Act. The purpose of the CHC list is to identify chemicals that could be harmful to human health or the environment because they are known or suspected carcinogens, reproductive or developmental toxicants, systemic toxicants, endocrine disruptors; are persistent, bioaccumulative, and toxic (PBT); or are very persistent and very bioaccumulative (vPvB).

The original CHC list was published in 2010 and contained 1,756 chemicals. The CHC list is required by law to be reviewed and updated at least every three years. The previous CHC list update in 2013 focused on chemical source data updates and a review of persistent, bioaccumulative, and toxic (PBT) chemicals on the list. The 2013 review resulted in the CHC list totaling 1,731 chemicals.

As part of the August 2016 update28 chemicals were removed and 66 chemicals were added to the CHC list, changing the overall size of the CHC list from 1,731 chemicals in 2013 to 1,769 in 2016.

In addition to the CHC list, the 2009 Toxic Free Kids Act also requires MDH to create a Priority Chemical (PC) list from the CHC list. The original and current PC list consists of the following nine chemicals:

  • Bisphenol A (BPA)
  • Butyl benzyl phthalate (BBP)
  • Dibutyl phthalate (DBP)
  • Di (2-ethylhexyl) phthalate (DEHP)
  • Decabromodiphenyl ether (decaBDE)
  • Hexabromocyclododecane (HBCD)
  • Lead
  • Cadmium
  • Formaldehyde

What are the restrictions?

There are no requirements related to the CHC or PC lists. However, Minnesota has 17 hazardous chemical and product restriction statutes, dating from 1976 through 2015, which either restrict the use of chemicals in certain products to specific levels or completely ban their use. Of these 17, nine restrictions involve chemicals on the PC list. For a full list of all 17 restrictions, see Appendix D on pages 26-27 of the 2016 Minnesota Chemicals of High Concern Report (PDF). Here are the nine restriction statutes that involve chemicals on the PC list:

  • Toxics in Packaging (total of Lead, Cadmium, Mercury, Hexavalent Chromium <100 ppm). Enacted in 1991.
  • Ink, Dye, Pigment, Paint, or Fungicide Containing Listed Metals (Lead, Cadmium, Mercury, or Hexavalent Chromium). Enacted in 1991.
  • Children’s Jewelry – Lead Prohibited. Enacted in 2007.
  • Bisphenol A in Children’s Products. Enacted in 2009.
  • Cadmium in Children’s Jewelry. Enacted in 2010
  • Bisphenol A in Containers for Infant Formula, Baby Food, or Toddler Food. Enacted in 2013.
  • Formaldehyde in Children’s Products. Enacted in 2013 and 2014.
  • Lead & Mercury in Wheel Weights and Other Balancing Products. Enacted in 2014.
  • Four Flame Retardants in Children’s Products & Upholstered Residential Furniture (HBCD, decaBDE, TDCPP, TCEP). Enacted in 2015.

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