California's Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65, or Prop 65), has been in the industry news recently. In this blog, I am not going to look at the chemicals or their levels…let's get down to the immediate bottom line: I want the industry to evaluate what labeling they want to add to their flooring packages. Below I've listed out a quick selection of sites (with small direct excerpts or summary descriptions so you can decide to read more or not) to get you thinking on the issue. Of course there are many sites more out there—check them out! My goal is to encourage the industry to consider the issue to avoid any more negative press for wood floors.
The state's official website:
OEHHA is the lead agency for implementation of Proposition 65 and may adopt and modify regulations as necessary. This site provides official documents as well as lists cases related to the Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65) for informational purposes.
The original NWFA recommendation on sawdust—ADD A LABEL!:
"The proposition requires that wood products sold in that state carry a warning label saying wood dust can cause cancer. People who violate the act could face fines of $2,500 per day per violation. Wood dust was added to the list in December 2009… The label reads, "Drilling, sawing, sanding or machining wood products generates wood dust, a substance known to the State of California to cause cancer. Avoid inhaling wood dust or use a dust mask or other safeguards for personal protection.""
The California Restaurant Association provides some guidance on label issues here and also warns about nuisance lawsuits—this is a very good look at why companies fear nuisance lawsuits and why they are so common:
"Proposition 65 is now widely criticized for requiring meaningless warnings in parking lots, hotel lobbies and restaurant entrances, as well as on airport walls and consumer product packaging. These "warnings" are required by Proposition 65 even when there is no actual risk of harm to anyone. In fact, Proposition 65 requires warnings at exposure levels as much as 1,000 times lower than the levels proven to have no adverse effect.
Proposition 65 is unique to California. No other government, state, federal or foreign, requires warning people about substances at safe levels…Private plaintiffs are also allowed to sue under Proposition 65… (they) are known as "bounty hunters" because they are allowed to keep one quarter of any civil penalties they collect. Lawsuits by private plaintiffs are much more common than lawsuits by the AG or DAs. "
A lawyer looks at possible changes to Prop 65 currently under discussion:
"Prop. 65 has created numerous headaches for companies that do business in the Golden State. One of the biggest is what is an "adequate" warning, and when does it have to be given? The law's implementing regulations give little real world guidance, and the law was written before the Internet and e-commerce exploded….As far as content is concerned, several environmental and consumer groups that regularly bring Prop. 65 suits want to see all Prop. 65 chemicals that a product contains listed on the product label. This could be a big deal because right now there is no requirement that a warning specify which of the state-listed chemicals is in the product, and some companies actually place a Prop. 65 warning on their products sold in California as a prophylactic strategy to avoid Prop. 65 notices."
The American Coatings Association is concerned about the changes referenced above increasing nuisance lawsuits:
"Products sold throughout the state of California now bear Prop 65 warnings that are easily recognized by consumers. However, Prop 65 has also given rise to a cottage industry of bounty hunter litigation with millions of dollars being spent on frivolous litigation with little, if any, benefit to the public at large."
This is best article I foundis by a lawyer on the issue of nuisance lawsuits, protective actions, and more. Since it is a must-read for all, instead of excerpting text from it, let me instead screen cap his opening:
Unsurprisingly the Wikipedia entry is easier to read than most official sites. It also provided an excellent illustration of the widespread use of a label to avoid problems:
A defense attorney's guide to Prop 65:
"Some view Proposition 65 lawsuits as legalized extortion."
There are plenty of other sites out there, so do your research. Talk to an attorney. Talk to testing labs. Consider this blog my warning label to the industry:
