Children's Products

Manufacturers of children's products ' toys, clothing, furniture and virtually everything else a child might use ' breathed a collective sigh of relief several months ago when the U. S. Consumer Product Safety Commission (CPSC) stayed for one year significant testing and certification aspects of implementation of the Consumer Product Safety Improvement Act (CPSIA) shortly before it was to take effect.

Often regarded as a response to scandals about tainted edibles and toys originating in Asia, the CPSIA would have imposed costly burdens on manufacturers of children's products to test and to certify that their products met new total lead limits (300 parts per million [ppm], dropped from 600 ppm, as of Aug. 14, 2009), phthalate limits for certain products (1000 ppm), and mandatory toy standards. This temporary stay, however, does not absolve manufacturers and importers from the responsibility of ensuring that their products do not violate these limits. Any product in excess of these limits is banned from sale, and continuing to sell products in excess of these limits can result in substantial penalties under the CPSIA. Also, unbeknownst perhaps to many manufacturers, some old (Cal. Health & Safety Code, sec 25349.5'25249.17 [commonly known as "Proposition 65"]) and some new (Assembly Bill 1108, Cal. Health & Safety Code, sec 108935'108939 ["AB 1108"]) California legislation already imposes significant regulation on the content of lead, phthalates and hundreds of other putative toxins in many of these same children's products if they are manufactured and/or distributed in California.

Why California?

According to the U.S. Bureau of Economic Analysis, California represents some 13% of the United States' retail trade Gross Domestic Product, and, considered alone, California is one the world's top 10 economies. At the same time, the state is considered one of the most aggressive with respect to environmental regulation and consumer protection, imposing standards even more stringent than those of the federal government. Thus, California consumer protection statutes and regulations have an enormous impact on manufacturers and distributors doing business in the United States.

Many manufacturers, importers, distributors, and retailers doing business in California have expressed confusion over the interplay between the CPSIA, AB 1108, and Proposition 65 and whether their products fall within the ambit of one or all of these provisions. It is no longer safe to assume that because products comply with federal safety standards, they also comply with state standards. To the contrary, it is possible that a product may be in compliance with any one of these statutes and not with the others.

CPSIA: Recent DevelopmentsRelating to Lead and Phthalate Regulation

According to the Final Rule on Children's Products Containing Lead issued by the CPSC on Aug. 19, 2009, the limit for lead in “children's products” (defined as any consumer product designed or intended primarily for children 12 years of age or younger, pursuant to Section 101(a) of the CPSIA), dropped from 600 ppm to 300 ppm as of Aug. 14, 2009. This limit will drop to 100 ppm on Aug. 14, 2011, unless the Commission determines that it is not technologically feasible. Products that contain lead in excess of these limits are considered banned hazardous substances and must be removed from inventory.

Section 108 of the CPSIA also includes a ban on three phthalates (DEHP, DBP, and BBP) in “children's toys” and “child-care articles.” Phthalates are chemicals used to make plastics more flexible and are present in many other products, such as cosmetics and other personal health care products, medical devices, building materials and adhesives. As defined in the CPSIA, a “children's toy” means a product intended for a child 12 years of age or younger for use when playing, and a “child care article” means a product that a child three years old or younger would use for sleeping, feeding, sucking or teething. Three additional phthalates (DINP, DIDP, and DnOP) have been prohibited pending further study and review by a group of outside experts and the Commission. This interim prohibition applies to child care articles or toys that can be placed in a child's mouth or brought to the mouth and kept in the mouth so that they can be sucked or chewed and that contain a concentration of more than 0.1% of the above phthalates.

Under the CPSIA, manufacturers and importers are required to test and certify their products in accordance with section 14(a) of the Consumer Product Safety Act as amended by Section 102(a) of the CPSIA. Although certain testing and certification requirements are currently subject to a one-year stay of enforcement, manufacturers and importers must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalate provisions of the CPSIA. The Commission has stated that it intends to obtain and test products in the marketplace to ensure compliance with these limits and that it will take appropriate enforcement action if it finds products in violation of the limits. Under the CPSIA, the sale of products in violation of these provisions can result in significant civil liability, including penalties for violations of the Act, penalties that were recently substantially increased from $8,000 to a maximum of $100,000 per violation and from $1.825 million to a maximum of $15 million for a related series of violations.

California's AB 1108

In California, pursuant to AB 1108, effective Jan. 1, 2009, it is illegal to make, import, distribute, or sell toys and/or child care articles with more than 0.1% of certain restricted phthalates ' the same six phthalates covered under the CPSIA. Because these provisions prohibit the sale of noncompliant products after Jan. 1, 2009, they require the removal of all noncompliant products from inventory by that date and thus are, in essence, retroactive requirements for manufacturers and distributors whose products are sold in California.

Although AB 1108's content requirements are similar to the CPSIA phthalate requirements, the definitions of “toys” and “child care articles” covered by AB 1108 can be read as pertaining to a potentially broader range of products than that of the CPSIA. For example, AB 1108 defines covered “child care articles” as “all products designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething” and contains no age limitation on the children who use such child care articles. The CPSIA omits the term “relaxation” and limits covered child care articles to those intended for use by children age three or younger. Likewise, under the definition of “toys” (“products designed or intended by the manufacturer to be used by children when they play”), AB 1108 sets no age limit for “children,” while the CPSIA defines “toys” as products intended for play by children “12 years or younger.”

Although SB 1108 does not contain any enforcement provision, California Attorney General Edmund Brown has stated that enforcement can be done through California's Unfair Competition Law. Cal. Bus. & Prof. Code, sec. 17200, et seq.

In a Dec. 3, 2008, letter to the CPSC, Brown made clear his position that the CPSIA does not in any way preempt AB 1108 because any requirement under AB 1108 is either identical to those in the CPSIA or applies to products not addressed by the
CPSIA. Lending further support to Brown's position on preemption, in April 2009, the Obama Administration published its policy to limit preemption of state laws by any action of executive offices or agencies.

In correspondence to the CPSC in March 2009, the California Attorney General also made clear his intention to enforce AB 1108 by examining individual parts or materials in any toy or child care article and urged the CPSC to modify the CPSIA sample preparation testing method to do the same, rather than allow testing of the entire object.

Proposition 65

California's Safe Drinking Water and Toxic Enforcement Act, more commonly known as Proposition 65, requires that a warning be given before knowingly exposing any individual to any one of more than 775 chemicals identified by the State of California as a carcinogen and/or a reproductive toxicant. Lead is listed as both a carcinogen and a reproductive toxicant, and various phthalates (BBP, DEHP, DBP, DnHP, and DIDP), which include all CPSIA Group 1 phthalates, are listed as reproductive/developmental toxicants, while DEHP is also identified as a carcinogen. Proposition 65 does list as a reproductive toxicant one phthalate (DnHP) not covered under either the CPSIA or AB 1108, while two phthalates (DINP and DnOP) covered by the CPSIA and AB 1108 are not presently subject to Proposition 65's warning requirement.

Exclusion from this warning requirement is primarily limited to the situation where the person responsible for the exposure (e.g., the manufacturer or distributor) can demonstrate that the exposure would be below the safe harbor limit identified by California's Office of Environmental Health Hazard Assessment (OEHHA). See Cal. Health & Safety Code sec. 25249.10(c), Cal. Code of Regulations, Title 27, sec. 25705, 25805. Any party in the distribution chain of the product could be subject to fines of up to $2,500 per day per violation, often argued to be equal to $2,500 per each such product sold to a California consumer without an appropriate warning, and may be required to pay the fees and costs incurred by any party seeking to enforce Proposition 65.

Safe harbor levels are available for lead and some, but not all, of the covered phthalates. These numbers, however, are expressed as micrograms (:gm) per day based on a specific route of exposure, rather than a straight product content provision. For example, California has determined that a product that would result in an oral exposure to DEHP below 410 :gm per day for adults and 58 :gm per day for infant boys between the ages 29 days and 24 months does not require a Proposition 65 warning. The safe harbor for products with lead is 0.5 :gm per day (oral). There is no definition of specifically covered or excluded products, such as is in the CPSIA's and AB 1108's definitions of toys and child care articles. Thus, exposure assessments under Proposition 65 may require modeling of how the product is used and how much of the listed chemical may be either directly ingested or absorbed through the skin.

Lawsuits alleging a violation of Proposition 65 can be brought by individuals acting in the public interest, the California Attorney General, district attorneys, or, in some circumstances, a city attorney. The citizen suit provision allows the citizen enforcer to collect all of its fees and costs associated with the enforcement action, as well as a portion of any penalty. These so-called “bounty hunter” provisions have resulted in a cottage industry of Proposition 65 lawsuits where a public interest group or private citizen identifies one sector of the market that contains a listed chemical arguably in excess of the safe harbor and proceeds to sue the individual manufacturers, distributors, and/or retailers of related products. The citizen suits typically target manufacturers, but can focus on distributors and/or retailers, especially where the manufacturer is outside of the United States.

Presently, there are literally hundreds of actions filed in California related to phthalates and lead in child-related products, such as bibs, school lunch boxes, painted cups, clothing, children's watches, toys, and children's jewelry. For example, one plaintiff filed at least 29 individual phthalate-related Proposition 65 actions in just the first six months of 2009 and had previously resolved a similar number of actions. These lawsuits involve dozens of manufacturers, distributors and retailers with claims related to vinyl zipper pulls, vinyl key chains, children's costumes, place mats, tote bags, notebooks, watchbands, sport-related objects, backpacks and bibs.

In practical application, the parties in a Proposition 65 lawsuit often determine how best to reduce exposure to a level where there is a reasonable confidence that it would be below the safe harbor or where the exposure falls below a level set by governmental agencies. For example, recent settlements reached in phthalate-related actions brought by citizen enforcers regarding DEHP in products such as children's watches and bathing product sets require that, in order to avoid placing an appropriate warning, the manufacturer or distributor must reformulate products so that they are essentially “phthalate free,” which is defined under the settlement agreements/consent judgments as containing no more than 0.1% DEHP when analyzed pursuant to specific testing methodologies.

As with the relationship between the CPSIA and AB 1108, the California Attorney General's position is that Proposition 65 is not preempted by either statute. He did note, however, that it is likely that products that comply with CPSIA and AB 1108 will not require Proposition 65 warnings. Given the broader reach of Proposition 65, lead and phthalate Proposition 65, warnings could be required on many items not covered by either the CPSIA or AB 1108.

Proposition 65, AB 1108 And CPSIA Litigation and Enforcement in California

The current and continued interaction between Proposition 65 and the CPSIA for products sold in California is underscored in a well-publicized civil suit brought by the California Attorney General, pursuant to Proposition 65, against various toy manufacturers accused of selling toys with excessive lead levels, People of California v. Mattel et al., Superior Court of California, Alameda Co., Case No. RG07356892. The settlements reached to date in the case require the settling toy manufacturers not only to pay penalties and costs (ranging from $31,000 to $500,000 per defendant) but also to comply with the lead standards of the CPSIA, for the same products covered by the CPSIA, for all such products manufactured after Nov. 30, 2008. As noted above, there are numerous other similar actions in California brought by consumer groups and the California Attorney General related to lead and phthalates in a variety of products used, or potentially used, by children.

Given the enforcement role allocated to state attorneys general under the CPSIA, one can expect additional similar lawsuits in California for highly visible products, using the CPSIA and AB 1108 limits as the threshold for Proposition 65 warnings and potentially alleging violations of all three statutes.

Conclusion

A manufacturer cannot assume that just because its product is in compliance with the CPSIA, the product is also in compliance with California's statutes, or vice versa. Ultimately, only a product-specific analysis can determine whether a product that complies with the CPSIA is also compliant with California's AB 1108 and Proposition 65. Although a product that is covered by and complies with the CPSIA will also be in compliance with AB 1108, so long as its individual components contain no more than 0.1 percent of the covered phthalates, it is possible that AB 1108 applies to a greater range of products.

It is also likely that products that meet the CPSIA and AB 1108 content requirements will not require Proposition 65 warnings, given the current standards agreed to in settlements and consent judgments reached by manufacturers and distributors with both private citizen enforcers and the California Attorney General. However, Proposition 65 potentially extends to a much larger range of products and covers some different phthalates, with the potential for additional phthalates to be added in the future. Thus, Proposition 65 clearly applies to products not governed by the CPSIA and AB 1108.

A prudent manufacturer would do well to ensure that all products that may be offered for sale in California, whether specifically covered by the CPSIA and/or AB 1108, meet the most restrictive formulation requirements under these statutes. Accordingly, even small, non-California-based manufacturers and retailers would do best to pay attention to and adhere to California's product content legislation and the CPSIA.

Lauren M. Michals, [email protected]; 415-984-8261, is counsel and Alexandra Epand is a partner in the Product Liability group of Nixon Peabody LLP in the San Francisco office. Their practices include experience with toxic exposure claims, product liability matters, and Proposition 65.

Manufacturers of children's products ' toys, clothing, furniture and virtually everything else a child might use ' breathed a collective sigh of relief several months ago when the U. S. Consumer Product Safety Commission (CPSC) stayed for one year significant testing and certification aspects of implementation of the Consumer Product Safety Improvement Act (CPSIA) shortly before it was to take effect.

Often regarded as a response to scandals about tainted edibles and toys originating in Asia, the CPSIA would have imposed costly burdens on manufacturers of children's products to test and to certify that their products met new total lead limits (300 parts per million [ppm], dropped from 600 ppm, as of Aug. 14, 2009), phthalate limits for certain products (1000 ppm), and mandatory toy standards. This temporary stay, however, does not absolve manufacturers and importers from the responsibility of ensuring that their products do not violate these limits. Any product in excess of these limits is banned from sale, and continuing to sell products in excess of these limits can result in substantial penalties under the CPSIA. Also, unbeknownst perhaps to many manufacturers, some old (Cal. Health & Safety Code, sec 25349.5'25249.17 [commonly known as "Proposition 65"]) and some new (Assembly Bill 1108, Cal. Health & Safety Code, sec 108935'108939 ["AB 1108"]) California legislation already imposes significant regulation on the content of lead, phthalates and hundreds of other putative toxins in many of these same children's products if they are manufactured and/or distributed in California.

Why California?

According to the U.S. Bureau of Economic Analysis, California represents some 13% of the United States' retail trade Gross Domestic Product, and, considered alone, California is one the world's top 10 economies. At the same time, the state is considered one of the most aggressive with respect to environmental regulation and consumer protection, imposing standards even more stringent than those of the federal government. Thus, California consumer protection statutes and regulations have an enormous impact on manufacturers and distributors doing business in the United States.

Many manufacturers, importers, distributors, and retailers doing business in California have expressed confusion over the interplay between the CPSIA, AB 1108, and Proposition 65 and whether their products fall within the ambit of one or all of these provisions. It is no longer safe to assume that because products comply with federal safety standards, they also comply with state standards. To the contrary, it is possible that a product may be in compliance with any one of these statutes and not with the others.

CPSIA: Recent DevelopmentsRelating to Lead and Phthalate Regulation

According to the Final Rule on Children's Products Containing Lead issued by the CPSC on Aug. 19, 2009, the limit for lead in “children's products” (defined as any consumer product designed or intended primarily for children 12 years of age or younger, pursuant to Section 101(a) of the CPSIA), dropped from 600 ppm to 300 ppm as of Aug. 14, 2009. This limit will drop to 100 ppm on Aug. 14, 2011, unless the Commission determines that it is not technologically feasible. Products that contain lead in excess of these limits are considered banned hazardous substances and must be removed from inventory.

Section 108 of the CPSIA also includes a ban on three phthalates (DEHP, DBP, and BBP) in “children's toys” and “child-care articles.” Phthalates are chemicals used to make plastics more flexible and are present in many other products, such as cosmetics and other personal health care products, medical devices, building materials and adhesives. As defined in the CPSIA, a “children's toy” means a product intended for a child 12 years of age or younger for use when playing, and a “child care article” means a product that a child three years old or younger would use for sleeping, feeding, sucking or teething. Three additional phthalates (DINP, DIDP, and DnOP) have been prohibited pending further study and review by a group of outside experts and the Commission. This interim prohibition applies to child care articles or toys that can be placed in a child's mouth or brought to the mouth and kept in the mouth so that they can be sucked or chewed and that contain a concentration of more than 0.1% of the above phthalates.

Under the CPSIA, manufacturers and importers are required to test and certify their products in accordance with section 14(a) of the Consumer Product Safety Act as amended by Section 102(a) of the CPSIA. Although certain testing and certification requirements are currently subject to a one-year stay of enforcement, manufacturers and importers must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalate provisions of the CPSIA. The Commission has stated that it intends to obtain and test products in the marketplace to ensure compliance with these limits and that it will take appropriate enforcement action if it finds products in violation of the limits. Under the CPSIA, the sale of products in violation of these provisions can result in significant civil liability, including penalties for violations of the Act, penalties that were recently substantially increased from $8,000 to a maximum of $100,000 per violation and from $1.825 million to a maximum of $15 million for a related series of violations.

California's AB 1108

In California, pursuant to AB 1108, effective Jan. 1, 2009, it is illegal to make, import, distribute, or sell toys and/or child care articles with more than 0.1% of certain restricted phthalates ' the same six phthalates covered under the CPSIA. Because these provisions prohibit the sale of noncompliant products after Jan. 1, 2009, they require the removal of all noncompliant products from inventory by that date and thus are, in essence, retroactive requirements for manufacturers and distributors whose products are sold in California.

Although AB 1108's content requirements are similar to the CPSIA phthalate requirements, the definitions of “toys” and “child care articles” covered by AB 1108 can be read as pertaining to a potentially broader range of products than that of the CPSIA. For example, AB 1108 defines covered “child care articles” as “all products designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething” and contains no age limitation on the children who use such child care articles. The CPSIA omits the term “relaxation” and limits covered child care articles to those intended for use by children age three or younger. Likewise, under the definition of “toys” (“products designed or intended by the manufacturer to be used by children when they play”), AB 1108 sets no age limit for “children,” while the CPSIA defines “toys” as products intended for play by children “12 years or younger.”

Although SB 1108 does not contain any enforcement provision, California Attorney General Edmund Brown has stated that enforcement can be done through California's Unfair Competition Law. Cal. Bus. & Prof. Code, sec. 17200, et seq.

In a Dec. 3, 2008, letter to the CPSC, Brown made clear his position that the CPSIA does not in any way preempt AB 1108 because any requirement under AB 1108 is either identical to those in the CPSIA or applies to products not addressed by the
CPSIA. Lending further support to Brown's position on preemption, in April 2009, the Obama Administration published its policy to limit preemption of state laws by any action of executive offices or agencies.

In correspondence to the CPSC in March 2009, the California Attorney General also made clear his intention to enforce AB 1108 by examining individual parts or materials in any toy or child care article and urged the CPSC to modify the CPSIA sample preparation testing method to do the same, rather than allow testing of the entire object.

Proposition 65

California's Safe Drinking Water and Toxic Enforcement Act, more commonly known as Proposition 65, requires that a warning be given before knowingly exposing any individual to any one of more than 775 chemicals identified by the State of California as a carcinogen and/or a reproductive toxicant. Lead is listed as both a carcinogen and a reproductive toxicant, and various phthalates (BBP, DEHP, DBP, DnHP, and DIDP), which include all CPSIA Group 1 phthalates, are listed as reproductive/developmental toxicants, while DEHP is also identified as a carcinogen. Proposition 65 does list as a reproductive toxicant one phthalate (DnHP) not covered under either the CPSIA or AB 1108, while two phthalates (DINP and DnOP) covered by the CPSIA and AB 1108 are not presently subject to Proposition 65's warning requirement.

Exclusion from this warning requirement is primarily limited to the situation where the person responsible for the exposure (e.g., the manufacturer or distributor) can demonstrate that the exposure would be below the safe harbor limit identified by California's Office of Environmental Health Hazard Assessment (OEHHA). See Cal. Health & Safety Code sec. 25249.10(c), Cal. Code of Regulations, Title 27, sec. 25705, 25805. Any party in the distribution chain of the product could be subject to fines of up to $2,500 per day per violation, often argued to be equal to $2,500 per each such product sold to a California consumer without an appropriate warning, and may be required to pay the fees and costs incurred by any party seeking to enforce Proposition 65.

Safe harbor levels are available for lead and some, but not all, of the covered phthalates. These numbers, however, are expressed as micrograms (:gm) per day based on a specific route of exposure, rather than a straight product content provision. For example, California has determined that a product that would result in an oral exposure to DEHP below 410 :gm per day for adults and 58 :gm per day for infant boys between the ages 29 days and 24 months does not require a Proposition 65 warning. The safe harbor for products with lead is 0.5 :gm per day (oral). There is no definition of specifically covered or excluded products, such as is in the CPSIA's and AB 1108's definitions of toys and child care articles. Thus, exposure assessments under Proposition 65 may require modeling of how the product is used and how much of the listed chemical may be either directly ingested or absorbed through the skin.

Lawsuits alleging a violation of Proposition 65 can be brought by individuals acting in the public interest, the California Attorney General, district attorneys, or, in some circumstances, a city attorney. The citizen suit provision allows the citizen enforcer to collect all of its fees and costs associated with the enforcement action, as well as a portion of any penalty. These so-called “bounty hunter” provisions have resulted in a cottage industry of Proposition 65 lawsuits where a public interest group or private citizen identifies one sector of the market that contains a listed chemical arguably in excess of the safe harbor and proceeds to sue the individual manufacturers, distributors, and/or retailers of related products. The citizen suits typically target manufacturers, but can focus on distributors and/or retailers, especially where the manufacturer is outside of the United States.

Presently, there are literally hundreds of actions filed in California related to phthalates and lead in child-related products, such as bibs, school lunch boxes, painted cups, clothing, children's watches, toys, and children's jewelry. For example, one plaintiff filed at least 29 individual phthalate-related Proposition 65 actions in just the first six months of 2009 and had previously resolved a similar number of actions. These lawsuits involve dozens of manufacturers, distributors and retailers with claims related to vinyl zipper pulls, vinyl key chains, children's costumes, place mats, tote bags, notebooks, watchbands, sport-related objects, backpacks and bibs.

In practical application, the parties in a Proposition 65 lawsuit often determine how best to reduce exposure to a level where there is a reasonable confidence that it would be below the safe harbor or where the exposure falls below a level set by governmental agencies. For example, recent settlements reached in phthalate-related actions brought by citizen enforcers regarding DEHP in products such as children's watches and bathing product sets require that, in order to avoid placing an appropriate warning, the manufacturer or distributor must reformulate products so that they are essentially “phthalate free,” which is defined under the settlement agreements/consent judgments as containing no more than 0.1% DEHP when analyzed pursuant to specific testing methodologies.

As with the relationship between the CPSIA and AB 1108, the California Attorney General's position is that Proposition 65 is not preempted by either statute. He did note, however, that it is likely that products that comply with CPSIA and AB 1108 will not require Proposition 65 warnings. Given the broader reach of Proposition 65, lead and phthalate Proposition 65, warnings could be required on many items not covered by either the CPSIA or AB 1108.

Proposition 65, AB 1108 And CPSIA Litigation and Enforcement in California

The current and continued interaction between Proposition 65 and the CPSIA for products sold in California is underscored in a well-publicized civil suit brought by the California Attorney General, pursuant to Proposition 65, against various toy manufacturers accused of selling toys with excessive lead levels, People of California v. Mattel et al., Superior Court of California, Alameda Co., Case No. RG07356892. The settlements reached to date in the case require the settling toy manufacturers not only to pay penalties and costs (ranging from $31,000 to $500,000 per defendant) but also to comply with the lead standards of the CPSIA, for the same products covered by the CPSIA, for all such products manufactured after Nov. 30, 2008. As noted above, there are numerous other similar actions in California brought by consumer groups and the California Attorney General related to lead and phthalates in a variety of products used, or potentially used, by children.

Given the enforcement role allocated to state attorneys general under the CPSIA, one can expect additional similar lawsuits in California for highly visible products, using the CPSIA and AB 1108 limits as the threshold for Proposition 65 warnings and potentially alleging violations of all three statutes.

Conclusion

A manufacturer cannot assume that just because its product is in compliance with the CPSIA, the product is also in compliance with California's statutes, or vice versa. Ultimately, only a product-specific analysis can determine whether a product that complies with the CPSIA is also compliant with California's AB 1108 and Proposition 65. Although a product that is covered by and complies with the CPSIA will also be in compliance with AB 1108, so long as its individual components contain no more than 0.1 percent of the covered phthalates, it is possible that AB 1108 applies to a greater range of products.

It is also likely that products that meet the CPSIA and AB 1108 content requirements will not require Proposition 65 warnings, given the current standards agreed to in settlements and consent judgments reached by manufacturers and distributors with both private citizen enforcers and the California Attorney General. However, Proposition 65 potentially extends to a much larger range of products and covers some different phthalates, with the potential for additional phthalates to be added in the future. Thus, Proposition 65 clearly applies to products not governed by the CPSIA and AB 1108.

A prudent manufacturer would do well to ensure that all products that may be offered for sale in California, whether specifically covered by the CPSIA and/or AB 1108, meet the most restrictive formulation requirements under these statutes. Accordingly, even small, non-California-based manufacturers and retailers would do best to pay attention to and adhere to California's product content legislation and the CPSIA.

Lauren M. Michals, [email protected]; 415-984-8261, is counsel and Alexandra Epand is a partner in the Product Liability group of Nixon Peabody LLP in the San Francisco office. Their practices include experience with toxic exposure claims, product liability matters, and Proposition 65.