PPB March 2018

If your customer does not allow you to apply Prop 65 warnings, then you have two choices: 1 You can test all your products to verify Prop 65 compliance without labeling; any products found with chemicals in excess of the Prop 65 limits for exposure must be reformulated to eliminate or substantially reduce those chemicals to avoid exposure violations. If the product cannot be reformulated or you cannot find another vendor to supply a compliant product, then you may need to eliminate the product altogether. 2 If you reformulate the product, then you should always retest to ensure that the product will comply without a warning. • If the retesting passes, then the product should be reasonably compliant for sale or distribution inCalifornia; always save all technical documents such as product spec sheets, bills of materials, and test reports. • If the retesting fails, then your most obvious choices are: ºº Pull the product and don’t source it at all. ºº Source the item but prepare to assume the risks and costs of litigation and penalties if the product gets into the hands of someone looking to expose the product’s safety issues. ºº Put a warning label on the product. ºº Reformulate the product and retest it ºº Find a different vendor for the item. More Tips To Manage Prop 65 Here are a few helpful tips to reduce your product risks: • One of the first rules in responsible sourcing is to know your vendor . Does your supplier or factory have the requisite safeguards and best practices in place to source and test compliant raw materials? If you don’t know, then do some due diligence on your vendor or hire a third- party inspection or auditing firm such as Asia Inspection to review the vendor’s processes; • Another rule is to know your product. This means you must find out from your source what is in the product (i.e., the components and the materials used to make it) and whether the product contains any of the 900-plus chemicals listed by OEHHA. Trusting your vendor is key, but always test the product for compliance with all applicable federal and state laws and regulations (including Prop 65); • You don’t need to—nor should you—test for all 900-plus Prop 65-listed chemicals. First, the cost of testing for more than a handful of chemicals or substances would break the bank for all of us. Secondly, it is always smart to find out what listed chemicals are typically found in the product you are sourcing (as evidenced by the latest Prop 65 violation notices, settlements, consent decrees and judgments). Recently, the most popular substances and chemicals have been heavy metals (such as lead and cadmium) and phthalates (such as DEHP and DINP). So, if you can properly manage the raw materials that go into your products, and have the usual suspects, such as lead and phthalates, tested, you’ll likely minimize your greatest chances of being caught with a Prop 65 violation. Use Your Resources Every company is different, and somemay not have a lot of internal resources or people to manage product compliance tasks. But, unfortunately, laws and regulations such as CPSIA and California Prop 65 are likely not going away. Our industry will continue to be challenged by these regulations. Luckily, PPAI and its Product Responsibility Action Group have created, and continue to create, excellent resources such as webinars, best practice guides and the annual Product Responsibility Summit to help you navigate the tricky and bumpy road of responsible sourcing. Leeton Lee has been a consumer products safety expert for 25 years, starting as in-house legal counsel at The Walt Disney Company where, for seven years, he helped establish Disney’s highly respected Corporate Product Integrity department. After Disney, he served in various general counsel positions and has created and managed product compliance departments for other leading marketing and promotional products companies. Lee serves as a product safety consultant to the promotional products industry through his company ComplyBox, and is chair of PPAI’s Product Responsibility Action Group (PRAG). He holds a bachelor’s degree in business from Pepperdine University, and a law degree from Loyola Law School-Los Angeles. Additional Resources PPAI Prop 65 & State Regulations Presentation https://onlineeducation. ppai.org/products/prop- 65-and-state-regulations PPAI Prop 65 Best Practice Guide for New Labeling Requirements http://ppai.org/ media/1814/pr-bp- proposition-65.pdf PPAI Responsible Sourcing FAQs http://ppai.org/corporate- responsibility/product- responsibility/product- responsibility-faqs/ OEHHA Webpages https://oehha.ca.gov/ proposition-65 and https://www. p65warnings.ca.gov/ 70 | MARCH 2018 | THINK