Proposition 65 and the Sign Industry

This article was written by Mike Santos and originally appeared in the December 2014 issue of Sign Builder Magazine.

It’s amazing how a California environmental law enacted in 1986 can effect the sign fabrication industry 28 years later, but that is the case with what has become known as “Proposition 65”.

In 1986, California voters approved an initiative to address their concerns about exposure to toxic chemicals. The initiative became the Safe Drinking Water and Toxic Enforcement Act of 1986, better known by its original name of Proposition 65.

Proposition 65 imposes requirements on companies doing business in California that have products containing specifically listed chemicals known to cause cancer or birth defects or other reproductive harm. This list includes naturally occurring and synthetic chemicals, along with additives or ingredients in pesticides, common household products, food, drugs, dyes, solvents and chemicals used in manufacturing and construction.

Proposition 65 requires companies doing business in California to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical. This warning can be given by a variety of means, such as by labeling a product, posting signs at the workplace, or publishing notices in a newspaper. Once a chemical is listed, businesses have 12 months to comply with warning requirements.

California’s Office of Environmental Health Hazard Assessment (OEHHA), developed numerical guidelines know as “safe harbor levels” for determining whether a warning is necessary. A business has “safe harbor” from Proposition 65 warning requirements if exposure to a chemical occurs at or below these levels. These safe harbor levels consist of No Significant Risk Levels for chemicals listed as causing cancer and the Maximum Allowable Dose Levels for chemicals listed as causing birth defects or reproductive harm. OEHHA has established over 300 safe harbor levels to date and continues to develop more levels for listed chemicals.

Proposition 65 has benefitted Californians in a number of ways. It has provided residents with information they can use to reduce their exposure to listed chemicals that may not have been adequately controlled under other state or federal laws. This law has also increased public awareness about the adverse effects of exposures to listed chemicals. For example, Proposition 65 has resulted in greater awareness of the dangers of alcoholic beverage consumption during pregnancy. Alcohol consumption warnings may be the most visible health warnings issued as a result of Proposition 65.

Proposition 65’s warning requirement has provided an incentive for manufacturers to remove listed chemicals from their products. For example, trichloroethylene, which is known to cause cancer, is no longer used in most correction fluids; and toluene, which causes birth defects or other reproductive harm, has been removed from many nail care products. In addition, Proposition 65 prompted manufacturers to decrease the lead content in ceramic tableware and wineries to eliminate the use of lead-containing foil caps on wine bottles.

Proposition 65 has also succeeded in reducing air emissions of listed chemicals in California, such as ethylene oxide and chloroform.

Although Proposition 65 has benefited Californians, it has come at a cost for companies doing business in the state. These companies have incurred expenses to test products, develop alternatives to listed chemicals, reduce discharges, provide warnings, and otherwise comply with this law. Penalties for violating Proposition 65 by failing to provide notices can be as high as $2,500 per violation per day!

Proposition 65 is enforced by the California Attorney General’s Office. Any district attorney or city attorney (for cities with populations exceeding 750,000) may enforce Proposition 65, as well as any individual acting in the public interest, may file a lawsuit against a business alleged to be in violation of the law. These “concerned citizens” are then entitled to a portion of the penalties paid by businesses, creating a hefty incentive for these “concerned citizens” to file as many lawsuits as possible. Thanks to Proposition 65, lawyers have pocketed over $129 million in attorney fees since 2000.

Compliance with this ever-changing law is tricky. State regulators have added more than 800 chemicals to the list of those that must be labeled under Prop 65. Then there’s over 300 “safe harbor levels” established for these chemicals to further muddy the waters.

How do I know so much about Proposition 65? My company has first-hand experience dealing with legislative compliance of Prop 65. An architectural firm in California requested material content information for Novacryl® PT Series, a popular sign substrate offered by Nova Polymers.

We were confident our Novacryl PT Series did not require labeling but the request forced us to act and confirm with certainty that we are in compliance with Prop 65. We hired an independent third party to evaluate our sign material and sent them samples for comprehensive testing.

We recognized a lot was on the line here. The consequences of not meeting Prop 65 standards meant that all the material we stocked and shipped to California would require the necessary labeling. We were even more concerned about the environmental ramifications. Are we selling a product deemed hazardous? Nova Polymers takes great pride in our commitment to environmental responsibility.

After thorough testing we were assured with certainty that Novacryl PT Series met Proposition 65’s environmental standards and did not require labeling. The process of confirming compliance was time-consuming and not inexpensive, but brought a level of awareness about our products that we did not have before.

This experience raises a number of questions relating to the sign industry at large and how it impacts all companies shipping products to California. Is your way-finding signage in compliance with Proposition 65? How many architects and sign fabricators check with material suppliers to make sure products are properly labeled? Are the products you’re using safe?

In the end, the process of confirming compliance with Proposition 65 was valuable and we learned a lot from the experience. We now know that the Novacryl PT Series we sell in California is in compliance and we can take comfort knowing that sign fabricators and their customers are safe using our products.