California Seeks to Add New Chemicals to Prop. 65 List

California's Office of Environmental Health Hazard Assessment (OEHHA) is proposing to add 30 chemicals linked to reproductive harm and cancer to the state's Proposition 65 list. Proposition 65, a statute passed by California voters in 1986, requires the state to list chemicals known to cause public health problems and bars some actions that could expose people to the substances.

Under Proposition 65, the Safe Drinking Water and Toxics Enforcement Act of 1986, OEHHA is supposed to add substances annually to its list of chemicals known to the state to cause cancer, birth defects, or other reproductive harm. The program also updates toxicity information for numerous listed chemicals each year. That list now includes approximately 775 chemicals, according to OEHHA's website [1].

The statute requires businesses to label products they sell with information about the chemical contents of the products and to disclose the release of chemicals into the environment. According to the website, the law also prohibits businesses from "knowingly discharging significant amounts of listed chemicals into sources of drinking water."

There are different ways that chemicals are proposed for Proposition 65 listing. OEHHA has a scientific advisory board that consists of two committees that may propose chemicals for listing. In addition, if an "authoritative body," as recognized by one of these two committees, identifies a substance as a carcinogen or a cause of birth defects or reproductive harm, OEHHA can list the chemical. Authoritative bodies include the U.S. Environmental Protection Agency, the Food and Drug Administration, the National Institute for Occupational Safety and Health, and the National Toxicology Program. The chemical may also be listed if it is identified by the California Labor Code as causing cancer or reproductive harm.

The proposal to list the additional chemicals comes after court challenges from environmental and labor groups and from industries affected by the statute, according to a June 16 BNA article [2] (subscription required). Environmentalists claimed OEHHA has been too slow to list chemicals. Industry opposed the listing method that relies on the labor code to identify chemicals. The cases were then consolidated. BNA reports that the Alameda County Superior Court in Sierra Club v. Schwarzenegger upheld the legality of listing chemicals through the labor code. Therefore, the state did not need to conduct additional scientific review, the court said.

OEHHA is now required to move forward with additional rules to clarify how and what chemicals can be listed annually under the labor safety standards, according to a press release [3] by the Natural Resources Defense Council, a party to the suit. OEHHA's announcement June 12 is the first result of the court's decision.

OEHHA's has proposed to list 30 new chemicals. The list contains both carcinogens and reproductive toxins. Among the carcinogens to be added are: styrene, marine diesel fuel, a category of herbicides, vinyl acetate (used in the production of plastics, paints, and adhesives), and wood dust.

The proposed chemicals impacting reproduction include chloroform, toluene, several types of ethers, ethylene oxide (an industrial gas used in the production of chemicals for medical sterilization), carbaryl (a common pesticide), and the refrigerant methyl chloride, according to BNA.

California could soon list bisphenol-A (BPA) as well, according to a June 18 Los Angeles Times blog post [4]. BPA is a compound used in hard plastics and the lining of food cans that has been linked to developmental disorders. The state Senate has passed a bill that bans the use of BPA in children's food and drink containers, and a July public hearing will explore whether the chemical should be on the Proposition 65 list.

In the case of BPA, however, California is following in the footsteps of some other state and local governments that have already moved to ban the substance. For example, http://www.courant.com/news/local/statewire/hc-ap-ct-xgr-babybottles-bju... [5] ">Connecticut passed a law June 4 with similar children's food and drink container provisions. The law is scheduled to go into effect Oct. 1, 2011. Minnesota became the first state to ban BPA in children's products when it passed a bill [6] in May requiring BPA-free containers by 2011. In addition, Chicago and Suffolk County, NY, have passed BPA bans.

Although many manufacturers have voluntarily stopped using BPA in their products, some industry groups insist that the evidence against BPA is too uncertain to justify regulations and have begun a marketing campaign to thwart the movement by state and local governments, according to a Washington Post article [7]. As more jurisdictions begin to limit or prevent products containing BPA from entering the marketplace in the absence of federal action, the historical trend of business supporting one federal standard (versus multiple standards) is likely to be repeated. California's decision to add BPA to the Proposition 65 list could be a significant trigger to federal action. Moreover, the Food and Drug Administration has already begun a scientific review of its policy on BPA, according to the Post.