Prop! 65! Label! Exclamations!

Are your boxes ready for August? Because it’s time to update that sawdust warning. You know that California Prop 65 one we’ve all had on our boxes for years, warning folks against breathing in sawdust? It’s got to get a little stronger soon. You need a little yellow exclamation and you need to make sure that “warning” is in nice big bold font! To be safe, it needs to look something like this:

For more on Prop 65, I’d like to introduce you to legal eagle Margaret Cerrato-Blue of Fox Rothschild LLP. Margaret is a Prop 65 compliance and defense lawyer who practices law in Washington State and California. She has kindly agreed to answer a few questions for us.

Margaret, when do we have to start using the new label?

The new warning symbol and format must be used no later than August 30, 2018, as required in the amended Prop 65 “Clear and Reasonable Warnings” Regulation (27 Cal. Code Regs § 25600 et seq.). This site link also has additional information about the new warning requirements. As is often the case with Prop 65 rules, the warning regulation is not explicit as to whether finished flooring products are absolutely required to have the Prop 65 wood dust warning label. Nevertheless, I think it’s the prudent thing to do.

The reason warning labels may not be required is that the wood dust warning rules appear to apply only to raw or unfinished wood products. Furthermore, the rules imply that wood dust warnings are required only on posted occupational signs, and on retail signs, or on retail invoices or receipts (in at least 12-point type in case you were wondering) where raw wood is sold in bulk. But it would be prudent to label your products anyway because the rules do not explicitly exclude completely processed or finished wood products like flooring, nor do they explicitly state they apply “only” or “solely” to unfinished wood products. I think it’s better to be on the safe side and place the warning on your boxes of wood flooring (be they solid, engineered, finished and unfinished) as well as laminate flooring. Doing so would also be consistent with what appears to me to be the current industry standard.

What specifically does the flooring industry have to worry about on the labels?

There are three things to consider.

“Safe Harbor” Warning: If you label your products with the Prop 65 wood dust warning, it is best to make sure the warning looks and reads exactly as set forth above because this is considered a “safe harbor” warning. This means it cannot be subject to a Prop 65 enforcement claim of non-compliance with the Prop 65 “clear and reasonable” standard for warnings. Prop 65 does allow businesses to create their own warning content and format, provided they comply with the statutory “clear and reasonable” standard, but creating something different could be a red flag for Prop 65 enforcers.

Additional Warning Labels (other than Wood Dust): You should determine whether there are Prop 65-listed chemicals in your product that may require that you include the standard consumer product warning on your boxes (“This product can expose you to chemicals including [name of one or more chemical], which is known to the state….”) (If so, there is a “safe harbor” short-form warning option that is also permitted). If you determine this is required, you should not combine it with the wood dust warning because you would lose the safe harbor protection for both warnings. The Prop 65 implementing agency that wrote the rules confirmed that a combined warning “would not comply with the safe harbor requirements.”

Internet Warnings: As of August 30th, for products with Prop 65 warning labels that are also sold over the internet, the Prop 65 warning must also be provided on the internet on the product display page (or via a clearly displayed link on the display page), or to California purchasers at checkout. This requirement applies to manufacturers, distributors, retailers and other parties that sell directly to the public online.

Can you tell us if we’re supposed to go back and relabel old boxes? I’ve got a lot of stock!

Good news here—your old stock is fine as packaged. The new warning rules that take effect on August 30, 2018 do not apply to products manufactured before that date. If you have old warnings on your boxes sold after that date, make sure you have proof of the manufacture date.

Other than labels, how else can we handle Prop65 responsibilities?

Prop65 can come into play at the jobsite—what would be known as the occupational use issue.

California manufacturers, as well as California businesses that employ professional installers of flooring products, would be required to provide Prop 65 warnings on their products and to their workers, respectively, for potential occupational exposures from the products. Such warnings would be required if the frequency with which installers are exposed to wood dust or other Prop 65-listed chemicals during installation would lead to elevated exposure sufficient to trigger warning requirements. This could be true even if the products may not require a Prop 65 warning for installation and use by consumers.

Now it does get a bit tricky. OSHA’s rules govern the jobsite. So if OSHA requires that you provide a Safety Data Sheet (SDS) with your product, you do not need to provide Prop 65 warnings.

Out-of-state manufacturers are exempt from Prop 65 occupational warning requirements, but they sometimes choose to provide Prop 65 warnings with their products, particularly in cases in which SDSs are not required, in order to alert their business customers in California that they may have Prop 65 occupational warning obligations.

How does Prop 65 relate to TSCA?

Directly, not at all.

You need to comply with both TSCA and CARB if your floor contains a regulated composite wood product. Compliance with federal and other California state requirements concerning the chemicals in your product does not necessarily mean it’s compliant with Prop 65. TSCA and CARB compliance labels do not take the place of a Prop 65 warning label. The fact that a product is compliant these regulations should mean, however, that it’s exempt from a Prop 65 warning, but this is something you should confirm.

OEHHA (the Prop 65 implementing agency) appears to recognize that TSCA and CARB-compliant products would be compliant with Prop 65’s safe harbor exposure level for formaldehyde because they advise the public on the Prop 65 website that buying CARB-compliant products is a prudent measure.

Anything else?

Just the usual lawyer disclaimer that this information should not be construed or relied upon as legal advice, although I’m happy to have had this opportunity to offer it for your general education and information. Companies should consult with their attorney if they need clarity on how to comply with Prop 65 or other regulations. And of course your readers should please feel free to give me a call if you need additional information or assistance.

Elizabeth Baldwin is Environmental Compliance Officer for Metropolitan Hardwood Floors. In her 25 plus year career in the wood industry has visited over 70 countries and hundreds of facilities of all sizes and types. She describes herself as a “jack of all wood trades.” Familiar with jungles of all sorts–having camped out along the Amazon and walked the halls of Congress–she blogs for the NWFA on both environmental and regulatory issues for educational and informational purposes only. Her blog is not intended and should not be construed as legal advice. Persons seeking legal advice on compliance with CARB, TSCA, the U.S. Lacey Act or any other law, regulation, or compliance requirement/claim should consult with the regulatory agency directly and/or a qualified legal professional.

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