On December 20, 2013, Diisononyl phthalate (DINP) was added to California’s list of chemicals known to cause cancer. California’s Office of Environmental Health Hazard Assessment (OEHHA) maintains the list pursuant to the state’s Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65.
Under Proposition 65, no person in the course of doing business in California may knowingly and intentionally expose any individual to a listed chemical without first providing a clear and reasonable warning. Cal. Health & Safety Code § 25249.6. The list of chemicals is updated often and new chemicals are added every year. The warning duty takes effect one year after a new chemical is listed. Id. § 25249.10. The warning requirement for DINP will be in effect for exposures that occur on or after December 20, 2014.
In its report, Evidence on the Carcinogenicity of Diisononyl Phthalate (DINP), OEHHA noted that DINP is primarily used as a general purpose plasticizer to increase softness, flexibility, and elasticity in a wide variety of polyvinyl chloride (PVC) products such as vinyl flooring, wire and cable insulation, stationery, coated fabrics, gloves, toys (where it was already restricted by law), tubing, garden hoses, artificial leather, footwear, automobile undercoatings, and roofing materials, as well as non-PVC products such as rubbers, inks, pigments, paints, lacquers, adhesives, and sealants.
The new listing could impact a wide range of business and industries. Other recent additions to the Proposition 65 list have resulted in a wave of private enforcement actions (first notice letters, as required under Proposition 65, and then lawsuits) shortly after the warning obligations for the newly listed chemicals took effect.
On October 28, 2011, Tris(1,3-dichloro-2-propyl)phosphate (TDCPP), a foam flame retardant, was added to the Proposition 65 list. The first notice letter was issued less than one month after the warning obligation became effective, and the first lawsuit was filed less than one month after the expiration of the notice period. To date, more than 250 notice of intent to sue letters have been issued and more than 200 lawsuits have been filed.
Titanium dioxide (airborne, unbound particles of respirable size), a chemical used in certain personal care products, was listed on September 2, 2011 and the warning obligation became effective on September 2, 2012. Since early 2013, more than 100 companies have received notice letters and been named in lawsuits.
Coconut oil diethanolamine condensate (cocamide DEA), used in some liquid soaps and shampoos, was listed on June 22, 2012 and the warning obligation just became effective on June 23, 2013. To date, 39 notice letters have been issued and multiple lawsuits have already been filed.
Many companies can mitigate their exposure to Proposition 65 liability for newly listed chemicals by taking steps to review, investigate and reformulate their products in the 12 months before the warning obligation takes effect.
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