The Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for implementing California’s Proposition 65, has published a hazard identification report on a widely used solvent, xylene, entitled, “Evidence on the Developmental and Reproductive Toxicity of Xylene.” According to the report, mixtures containing xylene are used heavily in the chemical and petroleum industries, both as a solvent and a gasoline additive. Xylene is also used as a component of paint thinner and varnishes, a rubber solvent in the tire industry, and a solvent and intermediate in synthetic reactions. Certain inks, glues, and other printing materials contain xylene, and xylene is also used in the manufacturing process for paper, polyesters, plasticizers, polyimide polymers, vitamins, pharmaceuticals, and insecticides.

Given the wide range of uses of xylene and xylene mixtures, a decision to list the chemical could have a large impact on many industries because under California’s “Safe Drinking Water and Toxic Enforcement Act of 1986” (Proposition 65) companies are required to warn California consumers and employees prior to exposing them to chemicals on the Proposition 65 list, which now includes close to 900 chemicals.

The report will be considered by the State’s Developmental and Reproductive Toxicant Identification Committee (DARTIC) when it meets to decide whether xylene should be added to the list of chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm (the “Proposition 65 list”). Though a date for DARTIC to meet has not yet been set, those who wish to review and comment on the hazard report should take note, as there is a November 27, 2012 deadline to submit written comments.

OEHHA’s release of the hazard report is a significant step in DARTIC’s evaluation process prior to deciding whether to place the chemical on the Proposition 65 list pursuant to the “state’s qualified expert” listing mechanism. The next step is for DARTIC to decide if xylene must be added to the Proposition 65 list.

If the DARTIC determines that xylene must be listed as a reproductive toxicant on the Proposition 65 list, OEHHA is obligated by state regulations to list the chemical. The requirement to warn California consumers and employees prior to exposure to the chemical would go into effect one year after OEHHA lists the chemical. Once that year has passed, businesses that fail to provide a “clear and reasonable” warning are at risk of being forced to pay steep statutory penalties when the law is enforced by the California Attorney General or, more commonly, when private plaintiffs bring an action under Proposition 65’s “private attorney general” provision.

OEHHA must receive comments on the hazard report and any supporting documentation by 5:00 p.m. on Tuesday, November 27, 2012. Interested parties that would like to provide comments and supporting documentation regarding OEHHA’s hazard report must keep a close eye on the November 27, 2012 deadline and should strongly consider contacting counsel for assistance.