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Trending Now: Prop 65 and CPSIA UpdatesSusan DeRagon, QIMA

Maurice Norris, PPAI

Anne Stone, PPAI

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Trending Now: Prop 65 and CPSIA Updates

This information is being furnished by PPAI for educational and informational purposes only. The Association makes no warranties or representations about specific dates, coverage or application. Consult with appropriate legal counsel about the specific application of the law to your business and products.

Consumer Product Safety Improvement Act of 2008 (CPSIA)

• Defines a child as 12 and younger

• Applies to:

• Children’s products

• Childcare articles

• Children’s toys CPSIA requirements

• Third party testing mandatory:

• Lead in substrate

• Lead in paint and surface coatings

• Some phthalates

• Children’s Product Certificate mandatory

• Tracking labels mandatory

• Makes previously voluntary standards mandatory

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Lead in substrate

Substrate is the material of which something is made, and to which surface coating (i.e. paint) may be applied

• 100 ppm lead as of August 14, 2011

Lead Paint Rule

Decorated or scrapable surface coatings

• 16 CFR 1303 in effect since 1978 at 600 ppm

• As of August 14, 2009, sets limit at

90 ppm

Phthalates

• Applies only to children’s toys and child care products

• For all such products, DEHP, DBP, BBP –limit of 0.1%

• For all such products or any part of the product that can be placed in a child’s mouth: DINP, DIDP, DnOP –limit of 0.1% (interim prohibition)

• Applies to accessible materials only (before and after use and abuse testing)

Children’s Product Certificate (CPC)

• Importer or Domestic manufacturer is responsible for testing and certification

• All testing must be reflected in Children’s Product Certificate (CPC) or General Conformity Certificate (GCC)

• Must be produced and made available for every youth order

• Sample certificates on the CPSC website

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Children’s Product Certificate (CPC)

Tracking labels

• Required for all children’s products manufactured after August 14, 2009

• Enhance recall effectiveness

• Required information:

• Manufacturer name

• Month & year of manufacture

• City & state of manufacture

• Batch or internal order number (P.O. number)

• Contact information (phone / email)

Tracking labels

• Must be permanent

• Hangtags and adhesive labels notacceptable

• Supplier should include tracking label information

• Depending on changes made to the supplier’s product, distributor may need to include additional tracking label markings

Tracking labels

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Tracking labels

• Example using the PPAI tracking label system:ps.ppa.org/SAMPLE003Promotional Products Association International

Size…

For the garment…

In general, exercise due care.

• Flammability of Wearing Apparel, 16 CFR 1610

• Fiber Identification Act

• Care Labeling Act

• Country of Origin

• RN number

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Imprint…

Ask yourself – are you now the manufacturer? Are you making a material change to the product?

Imprint…

CPSIA, Section 101 - Lead Paint Rule

• Applicable if the ink can be scraped off the garment

• 90ppm limit

• TESTING REQUIRED

What about bling?

Any hard attachments?

• Both lead limits apply to the decoration

• Use and abuse testing for attachments is recommended (small parts, sharp points, sharp edges)

Ask yourself – are you now the manufacturer? Are you making a material change to the product?

Not just lead, phthalates too

But not for everything…for apparel, think apparel intended for ages three and under, sleepwear, baby blankets, sleep mats, bibs and more

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Specific examples

Likely to be found in decoration or attachments such as Velcro, vinyl, zippers, buttons, clasps, and rhinestones.

What can you do?

• No need to change how you handle adult garment decorations

• Work with a screen printer who has tested all inks for children’s garments

• Rely on ink suppliers’ tests and component testing rule to create the secondary CPC

• Perform third-party tests on finished product to support the secondary CPC

• Make sure a secondary tracking label is affixed to the product

• Look for PPAI best practices

Secondary tracking label

When a distributor sources from an apparel distributor, contracts with a third-party decorator to apply ink or thread to a garment, and sells the product, the garment has been altered and requires a second tracking labelfor the same purpose as the first…

• A secondary tracking label is still required for embroidered items even though most embroidery threads are exempt from testing.

Secondary tracking label

Required information:

• Distributor’s (Decorator’s) name

• Month & year decoration was applied

• City & state where decoration was applied

• Decorator’s batch or internal order number

• Distributor’s contact information

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Secondary tracking label best practices

Label location:

• Bottom hemline

• Inside back neck

• Sewn in as a label behind the original care/tracking label Secondary

tracking label best practices

• Permanent tracking labels

• Mandatory for all children’s products

• Can be incorporated into the decoration if done at different time or by a different vendor

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“There is science, logic, reason; there is thought verified by experience. And then there is California.”

--Edward Abbey • CA Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was voted into law in November 1986 by a 63-37 percent margin.

• Purpose is to give consumers a chance to make an “informed decision” to protect themselves from exposure to certain chemicals that are known to the state of California to cause cancer, birth defects or other reproductive harm.

California Proposition 65

• California’s Office of Environmental Health Hazard Assessment (OEHHA) must annually publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.

• In 1986 that list included 30 chemicals

• It now includes 900+ chemicals

• Once a chemical is listed by OEHHA, companies have 12 months to comply with warning requirements under the regulation

The basics

• The list contains a wide range of naturally occurring and synthetic chemicals that include additives or ingredients in pesticides, household products, foods, drugs, dyes or solvents. They may be used in manufacturing and construction or they may be byproducts of chemical processes, such as motor vehicle exhaust.

What types of chemicals trigger the warning?

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• Prop 65 applies to

• Any person in the course of doing business

• Business that employs 10 or more employees

• Environments and products

Prop 65 requirements

Warnings onlyProvide a “clear and reasonable warning” before purchase and before knowingly and intentionally exposing anyone to a listed chemical

Who enforces Prop 65?

• OEHHA administers the program

• The California Attorney General’s Office, district and city attorneys enforces Prop 65

• Private enforcers aka Bounty Hunters

What’s the process?

• A 60-day notice of the alleged violation is provided to the alleged violator

• After that notice, the private enforcer can initiate litigation

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Penalties

• Failure to comply is enforceable by penalties up to $2500 per incident per day

• Private enforcers enter into settlements and split the money with the state

• Court approves and enters judgement against business owner

• Example:

Shipment of 500 mugs @ $2500 per mug=

$1,250,000 per day

Who wins?

• 2018: 829 settlements = $35 million

• 2017: 688 settlements = $26 million

• 2016: 760 settlements = $30 million

• 2015: 582 settlements = $26 million

• 2014: 663 settlements = $29 million

Who wins?

• 2018: 829 settlements = $35 million

• $27 million went to attorneys for their fees and costs

• That is 77% to attorneys

• Methods of exposure

• Oral

• Inhalation

• Transdermal

• Hand-to-mouth

• In most cases, exposure is measured in micrograms per day, based on average use of the product

• Very difficult and expense to defend a claim, since burden in on the maker

Prop 65 is an exposure regulation

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• California recently added BPA to the Prop 65 list as a reproductive toxicant

• Hazard based on exposure

• California adopted a limit for BPA dermal exposures of 3 µg/day• FDA daily intake limit from food is about

2700 µg/day

• Prop 65 bounty hunters only have to show your product contains BPA

• You must prove the exposure is below the 3 µg/day limit

Example of enforcement

• Eliminate the chemicals that trigger the need to warn or

• Apply a warning label consistent with OEHHA’s safe harbor standard

How are you compliant with Prop 65?

• The warning must include the name of the listed chemical that prompted the obligation to warn

• This must be the full name of the chemical

• The warning must include the corresponding risk of harm

• Cancer

• Birth defects and/or reproductive harm

• Cancer and reproductive harm

Prop 65 warnings

• Include a triangular yellow warning symbol with an exclamation point and must be as large as the “Warning”

• Directions to the OEHHA Prop 65 warning website www.P65Warnings.ca.gov

• The warning must be in languages other than English if those languages are used on the product or packaging

Prop 65 warnings

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WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.

WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov

WARNING: Cancer- www.P65Warnings.ca.gov

WARNING: Reproductive Harm- www.P65Warnings.ca.gov

Prop 65 warnings

Short form warnings

• This warning eliminates the need to identify the specific chemical that triggers the warning

• This warning must be in a type size no smaller than the largest type size used for other consumer information and in no case in a type size smaller than 6-point type

Warnings must be provided to consumers prior to or during purchase

• Internet sellers must provide separate warnings for products sold online, even if the products themselves contain a Prop 65 warning

• Automatically provide the warning to the purchaser prior to or during the purchase of the product

• The warning must be prominently displayed prior to the completion of purchase

• If you use the short form warning on the website, you must use the short form warning on the product

Internet warnings

Warnings must be provided to consumers prior to or during purchase

• Internet sellers must provide separate warnings for products sold online, even if the products themselves contain a Prop 65 warning

• Automatically provide the warning to the purchaser prior to or during the purchase of the product

• The warning must be prominently displayed prior to the completion of purchase

• If you use the short form warning on the website, you must use the short form warning on the product

Internet warnings

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• Catalog sellers must provide warnings for products sold in a catalog

• If you use the short form warning on the product, you must use the short form warning on the internet

Catalog warnings

• Leading product categories noticed for violation:

• Personal accessories

• Food and beverage

• Healthcare

• Household goods

• Other

• Personal care

• Tools/equipment – hand

• Sports equipment

• Plumbing/HVAC

• Kitchen/merchandise

ProductTrends

• Gym bags

• Recreational gear bags

• Fitness balls

• Hats

• Grooming kits/make up bags

• Wireless cable charger

• Jewelry box

• Gloves

• Travel cases

• Messenger bags

Chemical Trends: DEHP

• Brass (e g: key chains, pens, coffee mugs, pen holders)

• Fastening and trim on clothing (zippers, trim on sports clothing)

• Protective/decorative coatings on products

• Jewelry

• Decorative figurines

• Candles

• Toys

Chemical Trends: Lead

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• If workers or visitors to your California facilities will be exposed to Prop 65 listed chemicals, consider posting a Prop 65 warning in your facility

• You will also want to create a “map”—a floor plan delineating the affected area of the facility.

• The warning should be provided close enough to the source of exposure for the person seeing the warning to determine where and how they may be exposed

Environmental warnings

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Options for suppliers

• Inventory your products and identify all products that trigger

the obligation to warn

• Check chemical list published and updated by the

OEHHA and can be found at www.oehha.ca.gov

• Review the testing process

• Test for all 900+ chemicals? Not reasonable

• Know what chemicals are in the product and test the

product if it contains chemicals noted on the OEHHA list

• Engage a certified toxicologist to review the product to

determine appropriate warning language

• Test based on settlements of similar products

Options for suppliers

• LABEL with appropriate Prop 65 warning statement

• Update all catalogs and ecommerce sites to include warnings

• Communicate warning requirements to distributors

• Train the team

• Ask the customer if the product will or could be distributed in California and tell the supplier

• Ask if the product would be displayed or sold at retail

• Check Chemical List published and updated by the OEHHA and can be found at www.oehha.ca.gov

• Confirm with the supplier than none of the 900+ chemicals are in the product

• Ask for test reports

• LABEL with appropriate Prop 65 warning statement

• Update all catalogs and ecommerce sites to include warnings

• Communicate warning requirements to customers

• Train the team

Options for distributors

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Monitor the Settlements

Proposition 65 Settlement Summary Database

Main Product Categories include…

• Accessories

• Art and Craft

• Automobile Accessories

• Bags / Totes

• Bathroom Accessories

• Cases / Covers

• Children’s Products

• Cosmetics and Accessories

• Dishware

• Drinkware

• Electronics and Accessories

• Eyewear

• Food

• Food Contact

• Footwear

• Home Accessories

• Jewelry, Watches and Accessories

• Kitchen Accessories

• Pet Products

• Sporting Goods

• Stationary

• Tools

• Wearing Apparel

Settlement Chemicals include…

• Lead

• DEHP

• DBP

• BBP

• DIDP

• DnHP

• Cadmium

• BPA

• Acrylamide

• TDCPP

• TDBPP

• TCEP

• 4,4'-Methylenedianiline (MDA)

• Benzophenone

• Arsenic

• Formaldehyde

• Lead oxide

• Toluene

• Keychains and jewelry organizers- phthalates

• Barware and kitchenware with brass handles—lead

• Pet leashes and collars—lead

• Audio cables—phthalates

• Ice scoops—BPA

• Watchbands—phthalates

• Golf bag rain hoods- phthalates

• Pet toys—phthalates

• Polycarbonate goblets and salad servers- BPA

• Beach umbrellas with cases—phthalates

• Pet waste bag holders-phthalates

• And…

• Ginger cookies--acrylamide

Keep Up with Settlements

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Prop 65 Monthly Update Newsletter

• Includes New Chemicals proposed to be added to Prop 65 list• Reasons for proposed inclusion• Where they may be used, in which type of

products

• Includes New Chemicals added to Prop 65 list• Where they may be used, in which type of

products• Implementation date

• Includes Recent 60-day notices

Importance of 60 Day Notices

• These notices may become settlements

• These notices identify current chemicals being targeted

Note that Nickel is included in a 60-day notice for zipper and zipper pull. No settlement to date.

• Track most frequently listed chemicals in recent 60-day notices• In July, Di(2-ethylhexyl)phthalate (DEHP) is the

most frequently listed chemical

• Track most frequently listed product types in recent 60-day notices• In July, Backpack/Bags/Wallet/Badge Holder

and Accessories is the most frequent product type

Monthly Newsletter also includes…

Product Responsibility Resources

PPAI: www.ppai.org

PPAI Corporate Responsibility: http://www.ppai.org/corporate-responsibility/

QIMA: QIMA.com

Questions? AnneS@ppai.org 972-258-3041

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Thank you!Susan DeRagon, Susan.deragon@qima.comMaurice Norris, MauriceN@ppai.orgAnne Stone, AnneS@ppai.org