Consumer products companies should be aware that diisononyl phthalate (DINP), which is often used in soft plastics and vinyls, is now on the list of Proposition 65 chemicals.

GT Shareholder Jim Mattesich highlight this new risk in a recent client alert:

The California Office of Environmental Health Hazard Assessment (OEHHA) announced that it will add diisononyl phthalate (DINP) to the list of chemicals known to the State to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (widely known as Proposition 65). DINP is used in a wide array of soft plastics and vinyl.  The listing was effective December 20, 2013. Exposures to DINP may now require a Proposition 65 warning, as discussed below.

Proposition 65 requires companies to warn consumers prior to exposing them to chemicals on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and/or other reproductive harm. Liability for Proposition 65 applies at nearly all levels of a finished product’s supply chain. Once a chemical appears on the Proposition 65 list, companies have one year to comply with Proposition 65 with respect to that chemical. Companies found to be in violation of Proposition 65 face steep penalties of up to $2,500 per violation. Additionally, Proposition 65 allows private plaintiffs to bring actions alleging non-compliance based on a minimal showing of possible violation, at which point the burden to prove compliance shifts to the defendant.