Tag Archives: business regulation

Regulation and Common Sense Often Don’t Mix

In California, Proposition 65 requires that retailers and manufacturers disclose the use of any chemicals that may pose an environmental health risk.    Sounds like common sense, right?  Except go to virtually any retail or commercial or office building in California and pasted on the front door will be a sign that reads:  Chemicals are used in this building known by the State of California to cause cancer or other environmental hazards.

Now, does this warning help you very much? 

Of course not, because it was not designed to inform but to insure that building owners have a legal defense when they gets sued.  The California’s Office of Environmental Health Hazard Assessment (OEHHA) maintains a list of such chemicals required to be included in a Proposition 65 warning as a short cut of “gotcha” starting points for rookie lawyers eager to score their first settlement.

Why it Costs So Much to Do Business Today

In October 2011, OEHHA added the chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] to that list of Proposition 65 required disclosures. Tris is used widely as an approved flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats).  Once a chemical is added to the Prop 65 list retailers and manufacturers have one year to come into compliance. So after October 2012 these Tris users and makers are eligible for lawsuit target practice.

In practical terms, adding Prop 65 warnings to Tris products forces manufacturers and users to balance two competing risks.  One set of rules requires the use of approved flame retardants in furniture, bedding, auto products and infant clothing and Tris is approved for that purpose while another now labels the use of this flame retardant a cancer risk under Proposition 65.

So which is it?

Are products made with Tris safe or not? 

If I can’t find a product without Tris does this mean I don’t buy furniture, bedding, auto products or kids clothing?

The same OEHHA that added Tris to the Proposition 65 list of chemicals is now accepting public comment on its proposed “No Significant Risk Level” (NSRL) for TDCPP of 5.4 micrograms per day. This means that daily exposure below this level would be exempt from Proposition 65. OEHHA’s decision on whether to adopt this NSRL will not be made until after the public comment process closes in July 2012 but manufacturers have already had to incur the cost of compliance with the Prop 65 listing in order to have them in fully effect by October 2012.  This is a PERECT example of how California has become unfriendly to business, unfriendly to taxpayers, unfriendly to common sense.

So what do you think manufacturers of kids clothing will do—risk being sued by the trial bar if their product does NOT have the required label or take their chances?  Drop the use of Tris and use another approved flame retardant?  Quit making the product all together?  Go out of business?  That is what happened to the company that makes the ubiquitous red plastic gasoline cans we see almost everywhere.  you may have one in your garage to fuel your lawnmover.  The company was sued after some idiot poured gasoline using one of its cans on a fire and was burned by the fire ball he created.  The punitive damages awarded bankrupted this small Miami Oklahoma company which was forced to lay off its 120 employees and shut down.  The makers of Tris and any retailer that sells a product using Tris now have the same big target on their back.

So what should the label read?

“PROPOSITION 65 WARNING: The State of California requires that this cute onesie contain a flame retardant.  The flame retardant chemical “Tris” used in this product is approved for use as a flame retardant in children’s clothing, furniture, bedding and automotive products, but it is also listed on the Proposition 65 list of chemicals known to the State of California to cause cancer and other environmental health problems.  If this product exposes your kid to less than 5.4 micrograms per day don’t worry.  Longer exposures may cause cancer.  Change your kid’s clothing often to restart the clock on your daily exposure readings. If your kid gets cancer while wearing this product you may be able to sue the manufacturer and the store that sold this cute onesie to you.  The State of California has sovereign immunity from lawsuits such as these even though we require the use of the cancer causing chemical contained in this product. Trial lawyers are standing by to take your call.  Anything you win in damages from any such lawsuit is fully taxable by the State of California at the maximum rate allowed by law.”