One of the challenges of being a clothing manufacturer is staying up-to-date on local laws and ordinances. California has some of the strictest regulations regarding chemicals in the country, so businesses have to pay close attention. One rule, passed in 1986, affects clothing manufacturers and distributors (as well as all other commercial entities).
Although this law is 35 years old, it's updated continuously, meaning businesses have to stay apprised of any new changes or face the consequences. So, let's dive into California Proposition 65 and what it means for clothing manufacturers and distributors.
What is California Proposition 65?
The official name of this law is the Safe Drinking Water and Toxic Enforcement Act of 1986. However, everyone refers to it as Prop 65 since that's what it was on the ballot.
Since its inception, Prop 65 has affected virtually all businesses and corporate entities in the state. The primary purpose of the law was to ensure that "no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning." But, does Prop 65 apply to apparel? Yes, it does.
The Act is one of several "right to know" laws that aim at providing consumers with as much information about the products and services they buy. Since dangerous chemicals and elements are present in many industrial practices, they can wind up in all kinds of items. Companies must notify their customers of the presence of these compounds so that consumers can make informed decisions.
The primary elements that Proposition 65 focuses on are lead, cadmium, and phthalates. However, the current chemical list contains more than 900 chemicals, and more are added regularly. The list gets released every year, and companies have 12 months to adapt to face the consequences (more on those later).
The Office of Environmental Health Hazard Assessment (OEHHA) updates the list and administers the regulations. However, the California Attorney General's Office is in charge of enforcing the law.
How Does Prop 65 Affect Clothing Distributors and Manufacturers?
In June 2010, a coalition of more than 40 retailers and clothing manufacturers settled a class-action lawsuit for $1.7 million dollars. The goal of that lawsuit was to limit the amount of lead in handbags and other accessories. A direct result of that lawsuit was the establishment of lead concentration levels for various fashion items, including bags, shoes, and more. As consumers become more aware of the dangers of different chemicals and compounds, their demand for safe products will only increase.
Part of the problem with Prop 65 is that the burden of responsibility falls on everyone involved in the manufacturing and distribution of clothing and accessories. Apparel-makers and suppliers can't claim ignorance because they could be liable if they fail to adhere to the law. Otherwise, retailers may refuse items from suppliers that can't prove their goods don't contain cancer-causing chemicals.
There are several more challenges that stem from Prop 65, including:
- Compliance Across Borders - If manufacturers, suppliers, and retailers are all based in California, they're all held to the same standards, creating cohesion and efficiency. Unfortunately, most clothing and accessories are made in other states or countries, where similar laws may not exist. So, when retailers buy items from manufacturers overseas, they often have to test these products for any chemicals on Prop 65's list.
- Independent Testing - Thankfully, the OEHHA provides "safe harbor" limits (more on those later) for most of the chemicals on the list. However, for those that don't have these limits, retailers and manufacturers need to perform their own tests. To stay compliant with the law, these companies must provide documentation from third-party testers, which can be costly and time-consuming.
- Exposure vs. Concentration - Exposure levels are much different than concentration levels. For example, one product may have unsafe concentrations but low exposure possibilities. Exposure comes from handling the product, while chemical concentration refers to the amount of the elements contained in the item. Knowing both of these terms and how they apply to the law helps everyone stay compliant.
Which Clothing Components Have the Highest Risk of Lead and Cadmium?
Lead and cadmium are two elements with a long history of health hazards, and most consumers are aware of their dangers. When it comes to apparel and accessories, these elements are most present in:
- Polyurethane (PU) Products
- PVC Products
- Vinyl Products
- Screen Printed Elements
- Metallic Yarns
- Plastic Polymers
- Metallic Coatings
- Imitation Rhinestones
- Paint and Surface Coatings
Which Clothing Components Have the Highest Risk of Phthalates?
Phthalates have come under heavy scrutiny in recent years due to their notable effects on health. These elements are used to harden or plasticize various products and materials. Unfortunately, they don't break down naturally, and they can get into a person's body and accumulate, leading to adverse reactions and conditions.
Many of the same components that have lead and cadmium contain phthalates, such as:
- PU Products
- PVC Products
- Vinyl Products
- Soft Plastics
- Zipper Tabs
- Screen Prints
- Rubberized Buttons
- Plastic Polymers
- Paint and Surface Coatings
What Do Distributors and Manufacturers Need to Do to Follow Prop 65?
Prop 65 labeling requirements mean that manufacturers and distributors have to place clear warnings on clothing and accessories that contain any chemical on the list. It's important to note that you have to put different signs for cancer risks than those that may cause reproductive harm. So if a garment has both types of chemicals, it needs both warnings.
Manufacturers and distributors can place short or long-form versions of these warnings, depending on the size of the item and its packaging. As of 2018, these warnings need to contain the following elements:
- A large, yellow caution triangle
- The word "warning" in a larger font
- Additional warnings in other languages to match the rest of the packaging. So, if there are notices in English and Chinese, the sign needs to be in both languages as well.
- A web URL to the Prop65 website, www.P65warnings.ca.gov
- The words "expose you" instead of "contain"
- Food and non-food products can contain these warnings
Another provision of the 2018 update is that the warnings must appear before or during the transaction process for online purchases. The language for the long-form notifications should look like this:
- Cancer Risk - This product can expose you to chemicals including [names of any present chemicals], which is [are] known to the State of California to cause cancer. For more information, go to www.P65warnings.ca.gov.
- Reproductive Health - This product can expose you to chemicals including [names of any present chemicals], which is [are] known to the State of California to cause cancer. For more information, go to www.P65warnings.ca.gov.
- Reproductive Health - This product can expose you to chemicals including [name chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65warnings.ca.gov.
There are also some exemptions to Prop 65. So, if your organization fits into one of these categories, you don't have to worry about providing warnings on your products:
- Government Agencies and Utility Companies
- Businesses With Nine or Fewer Employees
- Exposures Pose No Cancer Risk
- Exposures Don't Show Any Effect at 1,000 Times the Standard Level
- The Chemicals Occur Naturally in Foods
- Discharges Don't Result in a "Significant Amount" of the Chemical Getting Into a Water Supply
What Are the Penalties for Violating Prop 65?
Both citizens and government representatives can sue companies that don't comply with Proposition 65. Individuals must provide evidence to bring a civil lawsuit against the company with their local district attorney or the Attorney General.
If a business violates the rule, it can be ordered by a federal judge to fix the problem. The company can also face fines of up to $2,500 per day per violation. So, if multiple products don't have warnings, they can add up quickly. Even if the business settles the lawsuit, it can wind up paying tens of thousands of dollars in fines and legal fees.
Mitigation Strategies to Ensure Prop 65 Compliance
While Proposition 65 is pervasive and affects many chemicals and products, there's no reason to get anxious about it. Here are some ways to mitigate any potential violations before they arise:
Reduce or Eliminate Chemicals
The most straightforward method (although not necessarily the "easiest") is to remove any carcinogenic or problematic chemicals from your products. This way, you don't have to worry about labeling at all. That said, if these chemicals are necessary for your production process, it may be worth it to reduce their levels to a "safe harbor" threshold. Doing this will save you lots of time and money in the long run.
Use Independent Testing
If you can prove that the chemicals in your products don't have high exposure levels, you can avoid labeling. Yes, hiring a third-party testing company can be costly, but you'll wind up spending less on labeling and potential lawsuits later on.
Work With Your Supply Chain
Everyone within the supply chain is responsible for adhering to Prop 65. If you work with companies based in other states or countries, be sure to talk with them about the law and what it means. From there, you can try to work out an arrangement to share the burden of labeling all your products. Every component within the supply chain matters, so leave no stone unturned. Otherwise, you might be non-compliant without realizing it.
Create an Education and Best Practices Guide
It's imperative that everyone on your team knows about Prop 65 and its effects. Otherwise, some people within your organization may not worry about labeling, leading to lawsuits. Educating everyone (especially managers and supervisors) helps minimize your risk level.
Get Your PPE From International Enviroguard
Depending on your business, you may need personal protective equipment (PPE) for your workers. Fortunately, International Enviroguard is well-versed in Prop 65 and PPE requirements. We'll help you get the protective clothing and resources you need to stay safe and compliant.