OEHHA Stumbles
For the past year and a half the California Office of Environmental Health Hazard Assessment (OEHHA) has been working to amend regulatory requirements related to use of the Proposition 65 short-form warning.
If you will recall, the short-form warning can take one of three forms:
- WARNING: Cancer - www.P65Warnings.ca.gov
- WARNING: Reproductive Harm - www.P65Warnings.ca.gov
- WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov
As stated in the Initial Statement of Reasons, OEHHA noted that
The regulation did not limit application of the short-form warning to a maximum label surface area. While OEHHA intended for this warning option to only be used for small products or containers with insufficient space for the longer warning, businesses have used the short-form warning on a wide range of consumer products that have more than enough label space for the longer warning. Just as concerning, the short-form warning is also being placed on some products even when the business has no knowledge of an exposure to a listed chemical requiring a Proposition 65 warning.
Indeed, this is exactly the case. A couple of years ago I bought a 30-inch in-wall oven to replace the ancient one in my kitchen and there, inside the door, was a short-form warning:
Just what you want to see in your oven, right?
Ignoring the fact that the French translation is incorrect and, more importantly, both the French and Spanish translations fail to include the required “www.P65Warnings.ca.gov” (additionally, this warning was not on the website of the retailer I purchased the oven from, which is also a requirement), I called the manufacturer (a very large international manufacturer of consumer products) to find out exactly what substance(s) is (are) present in the glass and metal my family and my food are being exposed to, since the label fails to tell me. After a lengthy battle to get past the administrative gate, I spoke with a representative to the U.S. president of the company. He assured me that this is simply pre-emptive, and they know of no Proposition 65 substances that we or our food could be exposed to by using this oven. He also told me that I, as a consultant, should understand this. Well, of course I do; I just wanted to extract that admission from his lips.
The prophylactic application of short-form warnings on products is, in fact, broadly practiced by manufacturers. While there is no legal penalty for its use, manufacturers in certain markets (e.g., those that relate to food, like my oven) who use it risk pushing potential customers towards competitors’ products that do not carry such warnings. Indeed, that should be an incentive to avoid this practice. Otherwise, the sole purpose is to protect the company from Proposition 65 lawsuits, potentially at the cost of brand image and customer delight.
The initial intent of this rulemaking process was to require that the short-form warning be used only on small products and contain the name of a Proposition 65-listed chemical. By April 2022, the product size requirement had been removed and the timeline for implementation increased from one year to two years from the date the revised regulation becomes effective.
Under California’s Administrative Procedures Act (APA), “rulemaking must be completed within one year of the date it was first noticed to the public. The one-year period was temporarily extended by an Executive Order due to the COVID-19 pandemic. However, even with the additional time provided under the Governor’s Executive Orders, OEHHA was unable to complete the regulatory process within the allotted time.” Therefore the process to revise requirements for the short-form warning has now expired. OEHHA will now have to restart the rulemaking process.
Once the process begins again, we should expect OEHHA to complete the process in a year’s time in order to ensure that this does not happen again. So, stay informed and join the OEHHA mailing list for Proposition 65 news and updates.
More Substances to Be Restricted Under EU RoHS
The decade-long but mostly straight and certainly slow road to restriction of medium-chain chlorinated paraffins (MCCPs) and tetrabromobisphenol A (TBBP-A) under the EU RoHS Directive appears to finally be coming to an end. The European Commission has announced plans to produce a Delegated Directive (amendment) that will add these to the list of restricted substances in Annex II of Directive 2011/65/EU (or possibly its upcoming recast instead) later this year.
A decade ago, BIO Intelligence Service (acquired by Deloitte in 2013) and ERA Technology (now RINA Tech UK Limited) produced a report for the European Commission’s DG ENV called “Measures to be implemented and additional impact assessment with regard to scope changes, pursuant to the new RoHS Directive.” The report mentioned the use of both MCCPs and TBBP-A in cables. Prior to that, in 2010, The European Free Trade Association, EFTA, published a restriction dossier under the REACH regulation for MCCPs.
In 2014 the Austrian environmental consultancy Umweltbundesamt GmbH published the (heavily criticized) “Study for the Review of the List of Restricted Substances under RoHS2” that prioritized a number of substances, including TBBP-A and MCCPs, in the group of second highest priority. Despite its flaws (including prioritizing substances that, in fact, do not physically exist in EEE), it has continued to provide the direction for the European Commission’s RoHS-related substance restriction workflow.
One thing to note is that TBBP-A is used in two modes: additive and reactive. In printed circuit board laminates and pre-pregs (as well as in encapsulants for semiconductors and other types of components), TBBP-A is reacted to form a thermoset so does not remain in the laminate as TBBP-A. However, it is also used as an additive flame retardant for hard thermoplastics like ABS, which is used, for instance, in enclosures and other similar applications. Additive applications will contain several percent by weight of TBBP-A, while reactive uses will only contain minimal residual amounts. If you have not moved your PCB technology to a bromine-free flame retardant system, work with your PCB manufacturer to understand how they control the residual amount of TBBP-A.
So, stay tuned and, if you haven’t tackled this yet, start asking your suppliers of just about anything with hard (TBBP-A) or soft (MCCP) plastics if their products contain either of these substances. If they do, start working with them to determine how to eliminate their presence from your products. My recommendation is two-fold:
- Review standards for flammability to be sure the flammable material requires flame retardants.
- Avoid replacing these with halogenated flame retardants as they risk future restriction (certain phosphorus-based flame retardants do as well, so be careful).
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