2007 Expo PROPOSITION 65 Final

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2007 Expo PROPOSITION 65 Final Powered By Docstoc
 How This California Law
    Affects the Entire
  Promotional Products
   Steve Slagle, CAE, PPAI President
   Stan Breckenridge, MAS, Moderne
    Glass Company, PPAI Board of
   Trenton H. Norris, Esq., Partner,
    Bingham McCutchen, LLP, San
   John Satagaj, Esq., PPAI General
    Counsel and Legislative Affairs
Presentation Agenda
   Background Information
   Proposition 65 Compliance
   Enforcement and Settlements
   Possible Legislative Remedies
   The Next Steps: Industry Education and Action
   Research and Resources
   Your Questions
Background Information
   In 1986, California voters approved an
    initiative to address growing concerns
    about exposure to toxic chemicals
       Safe Drinking Water and Toxic
        Enforcement Act of 1986 - Proposition 65

   California Law = National Issue?
Proposition 65
   Proposition 65 requires that the
    Governor publish a list of chemicals
    known to the State of California to cause
    cancer, birth defects, or other
    reproductive harm
   List has grown to include approximately
    750 chemicals since it was first
    published in 1987
Proposition 65
   Proposition 65 requires that
    businesses notify Californians about
    significant amounts of chemicals
    known to the State of California to
    cause cancer, birth defects, or other
    reproductive harm in the products
    they purchase, in their homes or
    workplaces, or that are released into
    the environment
Background Information
   Proposition 65 is a reality for companies
    doing business in California. There may
    be significant tangible and intangible
    costs associated with compliance and
    noncompliance with the law…
   Compliance
       Expense to test products
       Development of alternatives to listed
       Reducing discharges
       Providing warnings
   Non-compliance
       Lawsuits, legal fees, settlements, injunctive
What Is On The List?
 Dyes and inks
 Solvents

 Pesticides

 Prescription and over-the-counter drugs

 Food and food additives

 Common household products

 Byproducts of certain processes
       Motor vehicle exhaust
What Must A Business Do
or Not Do?
   Businesses are required to provide a ―clear and
    reasonable warning‖ before knowingly or
    intentionally exposing anyone to a listed
       Labeling a consumer product
       Posting signs at the workplace or public area
       Distributing notices
       Publishing notices in a newspaper
   Businesses are prohibited from knowingly
    discharging listed chemicals into sources of
    drinking water
What Must A Business Do
or Not Do?
   Any company with ten (10) or more
    employees that operates within the State
    or sells products in California must
    comply with the requirements of
    Proposition 65
   Once a chemical is listed, businesses
    have 12 months to comply with warning
   Once a chemical is listed, businesses
    have 20 months to comply with the
Who Monitors the
   Businesses do not file reports with the
    State regarding what warnings they have
    issued and why
       The State does not provide specific
        information about any particular warning
       The business issuing the warning is the party
        to contact for more information about the
        warning, chemicals involved, the manner the
        chemicals are present and how exposure
        may occur
Proposition 65
   Enforcement is carried out through civil
       California Attorney General’s Office
       Any district attorney or city attorney
        (population above 750,000)
       Private parties acting in the public interest
        may enforce Proposition 65 by filing a lawsuit
         • It provides notice of the alleged violation to the
           business and all public prosecutors; AND
         • No public prosecutor sues first within 60 days of
           the notice
What Types of Promotional
Products Are Most Affected?
   Drink ware and glassware
   Food products, including alcohol
   Tableware, picnic products
   Costume or children’s jewelry
   Lead crystal awards, vases
   Anything with an electrical cord
   PVC or soft plastic
   Toluene markers
   Carbonless copy paper
   Brass products
Plaintiff’s Favorites

   Toluene
   Lead
   Mercury
   Formaldehyde
   Asbestos
   Chloroform
   PCBs
   Crystalline Silica
   Cadmium
Options for Dealing with
Proposition 65
 Prevention   and Compliance
   Don’t sell products in California
   Don’t sell products with listed chemicals
    in California
   Seek alternative manufacturing and/or
    decorating methods
   Arrange indemnities with suppliers
   Provide a ―clear and reasonable‖ warning
   Seek knowledgeable legal counsel
   Support legislative remedies
What Other Products Have
Been Affected?
   Art Supply Clay           Nail Polish
   Bricks/Cement Blocks      Nicotine Patches
   Calcium Supplements       Parking Garages
   Cheese
                              Pasta Sauces
   Dandruff Shampoo
                              Pipe Valves
   Soldering Irons
   Fleets of Trucks          Potato Chips/Fries

   Fluorescent Bulbs         Railroad Ties
   Hair Dye                  Toys
   Hair Lice Treatment       Tuna Fish
   Jet Skis
                              Vitamins
                              Water Meters
What is an Exposure?

   Exposures can be
       Oral
       Inhalation
       Transdermal (through the skin)
       Hand-to-mouth
   Exposure matters (micrograms/day)
       NOT concentration of the chemical
        (micrograms per liter or parts per million)
       Average use
Dealing with Proposition 65
          What are your options?

    Provide A ―Clear and Reasonable‖
     If products contain listed chemicals,
       provide a warning:
      •   That one or more listed chemicals is present in the
      •   That you have evaluated the exposure and
          concluded that it exceeds the ―no significant risk‖
          level, or
      •   The business has chosen to provide a warning
          simply based on its knowledge about the presence of
          a listed chemical, without attempting to evaluate the
Example of Warning Label
 Product label provided by promotional
 products industry supplier

 Glassware and Ceramic drink ware with
 colored decorations on the exterior contain
 lead, lead compounds and/or cadmium which
 are known to the State of California to cause
 cancer or birth defects or other reproductive
Become partners:
   Eliminate the use of chemicals and
    processes listed under Proposition 65
   Make certain products meet the Safe
    Harbor levels
   Communicate with distributors about the
    distribution of products into California
   Label products accordingly
Become consultants:
   Work with clients to determine the
    suitability of a product or service including
    where the product will be used and
   Do your homework. Work with reliable and
    educated suppliers
Seek Knowledgeable
   The issues of the potential practical
    level of financial exposure of your
    company versus others involved in the
    transaction, the court’s jurisdiction
    over your company, and the merits of
    settlement are complicated legal
    questions to which there is no “one
    answer fits all.” Therefore you should
    consult with an attorney familiar with
    California Law and Proposition 65
    about your situation.
Possible Legislative
   Federal legislation to preempt Proposition 65
       The National Uniformity for Food Act of 2006
       Would have amended the Federal Food, Drug, and
        Cosmetic Act to provide for uniform food safety warning
        notification requirements
       Passed House, died in Senate in 2006
       New legislation in 2007? New approach?
   Federal legislation to preempt Proposition 65
       Canned tuna case
       Prescription drugs
   State legislative action
       Proposition 65 requires 2/3 majority for amendment
       Amendment must ―further the purposes‖ of the law
       Ballot propositions considered
Next Steps for Industry
Education and Action
 Additional Webinar programs in 2007
 PPAI L.A.W. Action Alerts as
 Coalition with other trade associations
       National Uniformity for Food Coalition
        – More than 100 companies and
        organizations whose industries are
        impacted by Prop 65
    Research and
Learn more and take action!
   PPAI LAW: www.ppa.org
       Proposition 65 Legislative Alerts
       Letter sample and template
       March 2006 PPB President’s
       May 2006 PPB Article Indecent
Research and
Learn more:
   Bingham McCutchen:
   Office of Environmental Health Hazard
    Assessment (OEHHA—program
    administrator, chemical lists)
   Enforcement Reporting – CA Attorney
    General     www.ag.ca.gov/prop65
Research and
Learn more:
   Society of Glass and Ceramic Decorators
    515 King Street, Suite 420
    Alexandria, VA 22314
    For information on test procedures for metal release from
    tableware, consult a recognized testing facility that is
    experienced with the appropriate testing procedures. SGCD
    does not recommend any particular laboratory.
    Research and
Learn more and take action!
   PPAI LAW: www.ppa.org
       Proposition 65 Legislative Alerts
       Letter sample and template
       March 2006 PPB President’s
       May 2006 PPB Article Indecent

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