California’s Proposition 65 (“Prop 65”) is notable for many reasons, one of which is that the Prop 65 list of chemicals known to the State of California to cause cancer or reproductive harm is long (over 800 chemicals) and is ever-growing. That being said, the vast majority of Prop 65 lawsuits and alleged violations only involve a handful of chemicals, including acrylamide, cadmium, lead, and phthalates (DEHP, DBP, BBP, DIDP, DnHP). For that reason, it is notable when a new trend emerges with Prop 65 notices.
One recent trend is the large number of Prop 65 “60 Day Notices” that have been issued by plaintiffs concerning the chemical Tris(1,3-dichloro-2-propyl) phosphate or “TDCPP.” In fact, in the first two weeks of 2013, Prop 65 plaintiffs have issued more than 40 notices to numerous manufacturers and retailers regarding alleged violations of Prop 65 for TDCPP in products. The products listed in these notices include foam mattresses toppers, foam-cushioned upholstered furniture, foam mats for children and infants, and foam massage cushions.
The onslaught of Prop 65 notices regarding TDCPP is not a mere coincidence. The Office of Environmental Health Hazard Assessment (“OEHHA”) added TDCPP to the Proposition 65 list of chemicals on October 28, 2011, and Prop 65 enforcement actions could not be filed until October 28, 2012. Now, just a few months later, it is clear that many Prop 65 plaintiffs intend to pursue actions regarding TDCPP and we can expect many companies to have to defend cases involving TDCPP in 2013.
According to OEHHA, TDCPP is used as a flame retardant in foams and as a plasticizer. http://oehha.ca.gov/prop65/hazard_ident/pdf_zip/TDCPP070811.pdf Companies that manufacture or sell products that may contain TDCPP should take steps to assess whether action is necessary to ensure compliance with Prop 65 and avoid a Prop 65 lawsuit. For more information on Stoel’s Prop 65 services, see http://www.stoel.com/showarea.aspx?Show=8711