California Prop 65 Update Potentially Impacts Electronics Supply Chain

Last week, an update to California Safe Drinking Water and Toxic Enforcement Act of 1986, often referred to as Proposition 65, went into force. Electronics OEMs, distributors, component makers, and retailers must update their compliance or risk the consequences.

“Violations often ensnare everyone in that supply chain, and at that point you bring in the lawyers and the toxicologists, and the costs mount whether you win or not,” said Don Elario, vice president of Industry Practices at the Electronic Components Industry Association (ECIA) “A sound risk management strategy should focus on claim prevention, not simply claim defense.”

On the face of it, Proposition 65 seems to have little to do with the electronics industry. However, at its heart, Prop 65 is about chemicals—and certainly that has the potential to impact electronics makers. It requires any company doing business in California to warn consumers about significant exposures to chemicals that the state has identified as causing cancer, birth defects, or reproductive harm. The rules apply to components or products available to consumers or exposed to workers in California and require clear labelling if the product contains any covered substances that exceed safe harbor levels (defined by the Office of Environmental Health Hazard Assessment with complex and technical exposure criteria). 

In 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) declared new consumer warning regulations that apply to any products manufactured after on August 30, 2018 (27 Cal. Code Reg. Section 25600 et seq.). As the law evolves, it’s important that any company selling, supplying, or distributing products in California, should re-evaluate what they are doing or should be doing in terms of compliance.

Since its inception, the proposition has evolved to include over 900 substances and the list is updated annually. At least 100 of those are found in electronic components and products. “California is uniquely aggressive in requiring labeling and warnings for products that contain any of over 900 listed substances which exceed specific exposure levels,” Elario told EBN. “California is also unique in the laws that allow for consumer complaints and the potential for financial penalties and the award of proceeds to consumers and their attorneys.” 

The cost of litigation are certainly being felt—and those effects are likely to increase. “The law has engendered a substantial increase in litigation among the tort bar in California,” the ECIA GIPC said. “Prop 65 has simple claim requirements and shifts the burden of proof to defending companies.”

Large organizations may be particularly at risk. “As the litigators target opportunities, they look for products containing listed substances, noncompliant labels, or warnings, and companies with deep pockets,” said Elario. “They do not have to prove damages, just label or warning violations. You can settle, you can fight, but either way it will be expensive.”

In 2017, $25 million in settlements were awarded, a figure that is likely to double this year.  It will also likely be time consuming as customers come looking for Prop 65 compliance information. Manufacturers, for example, should identify any Prop 65 substance in their products, develop compliance position statements and create compliance and warning labels as appropriate.

The broader benefits of the legislation may be lost in the noise. “Unfortunately, the total impact may be more negative than positive,” Elario said.  “The massive number of warnings, due to the size of the concerned substance list and the risk of litigation, are potentially making consumers numb to the warnings. It’s hard to focus on real health risks when everything is labeled as a risk.”

Although caution is warranted, electronics companies shouldn’t panic. “Electronic components are generally internal to consumer level products so the potential for consumer exposure to component surfaces is low, and potential to reach specified exposure levels for listed substances is even lower,” explained Elario.  
“Exceptions might include cables, plugs, touch screens, key switches, enclosures and other outer surface items. Any components or low-level assemblies sold directly to consumers might also be at risk.

This shift points to a general shift in the industry toward more attention to environmental compliance. In Europe, Restriction of Hazardous Substances (RoHS) directives moderate lead, cadmium, mercury and other substances. Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) directives require disclosure on a few hundred substances. “Similar initiatives are underway in Asia and other parts of the world,” Elario added.

6 comments on “California Prop 65 Update Potentially Impacts Electronics Supply Chain

  1. Sparky
    September 6, 2018

    Proposition 65 has grown to include so many chemicals it may soon be easier to produce a list of substances that are not named in Proposition 65. Because there are so many chemicals it is like the boy who cried wolf: California consumers have transitioned from label-leary to label weary. Most recently Prop 65 labels have shown-up on coffee products : For small companies it's easier and safer to just declare the product is not Prop 65 compliant than to risk otherwise. – Sparky

  2. Velocitech
    September 6, 2018

    Like most Californian's, I am immune to Prop 65 warning signs and labels that are posted everything from restaurants to products that we buy on a daily basis.  This just goes to show how California has become an over legislated state.  Has Prop 65 become a joke?  YES.  I like the paragraph and all of the replies that validate that whatever comes out of Sacramento is a complete waste of the time and money.  Too bad that the California government has the complete opposite approach than the business world.  We in the industry are constantly looking for better ways to improve the cost of doing business and improving processes, while the State of California continues to look for more ways to spend their unlimited supply of tax and special interest moneythat we give away on a daily basis!

  3. DCAMike
    September 6, 2018

    There are over 20 million chemicals, so no it would not “be easier to produce a list of substances that are not named in Proposition 65” :).   I agree that the labeling, particularly of businesses and stores, is out of hand and we've all grown immune to it. But the new label will certainly result in more concern and fear. I'm not sure that's a good thing but the bottom line is that toxicological properties of chemicals in the parts and materials used in the electronics sector have almost never been a design parameter, and it's way past time that we make it so. Otherwise our ignorance will continue to be underscored by governments regulating us (and other similarly ignorant sectors) in ways that may not be as appropriate or effective as we could be ourselves were we to take it on directly as an industry. We've done that with EMC, RF and safety performance requirements; we need to do it with human health and environmental performance requirements.

  4. haladf
    September 11, 2018

    First, this isn't new, it's an ameded piece of legislation and the EU equivalent is REACH, which contains a list of cancerous and other harmful chemicals, which are also refrerenced through the International Chemical Reference Substances (ICRS).  They can also be monotored through organizations such as Chemical Watch. the worry thing about this article is that it says that chemicals might not seem to have anything to do with the electonics idustry??  In which world does chemicals not have something to do with substances? Back on point, the further silly claim that the electoinics are internal so don't matter: 1. If a prouct can be disassembled or come appart, then the contents are relevant as the user might acidentally come in contact with them 2. Products going to lnadfull will poison the water supply and food supply We don't know how chemicals interract, so the list is not complete and subject to change as new data becomes available. Lead, Cadmium, arsenic, plasticides, amonia, acids and more have all been used in the electonics industry and are now all but banned.  We produce over 200 electronic phones, pads, tvs, white goods per second around the world, that's a lot of wast and we need to concentrate on stopping the compound problem instead of ignoring it. The electonics sector watches fractions of a cent shift in price but ignores its pollution as irelevant.  I have monitored pollutants since the late 1980s, so I worry that people still say it is not an issue

  5. haladf
    September 11, 2018

    You should read those signs, the one on the shiny packpack you bought for your kids warns you that it is carcinogenicparticularly for the young and if they put it in their mouths. Soft plastics also damage reproductive systems The main point of the labelling is to encourage companies to reduce their pollution, which will make your food safer, your air cleaner, your kids lives less unpleasant and prone to early disease and death

  6. William K.
    September 30, 2018

    Really, the solution is simple. Since the government in california is made up of such smart people, the solution is to ban the sale of all products containing any of these dangerous materials. This will protect the much less intelligent folks from poisoning themselves. But it will be very important to ban the sale of such items completely, so that NOBODY can purchase them!

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