The Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for maintaining the list of chemicals subject to California’s Proposition 65, recently adopted a regulation defining the "No Significant Risk Level” (NSRL) for tris (1,3-dichloro-2-propyl) phosphate (TDCPP) at 5.4 micrograms per day. TDCPP is produced in high volumes and is used primarily as an flame retardant additive in flexible polyurethane foams, including those used in upholstered furniture, automotive products (such as head rests and seat cushions), and baby products (such as car seats, strollers, nursing pillows, and sleep positioners). TDCPP has also been used as a flame retardant in plasticizers and rigid polyurethane foams, rubbers, plastics, resins, and textile coatings. The regulation was approved by the Office of Administrative Law on September 20, 2012, and has an effective date of October 20, 2012.

Proposition 65, California’s “Safe Drinking Water and Toxic Enforcement Act of 1986,” 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. However, no warning is required if the person responsible for the exposure, “can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer.” While Proposition 65 often places the burden of demonstrating an NSRL on alleged violators, for some chemicals OEHHA has set a regulatory NSRL. 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. TDCPP was listed as a chemical known to the State of California to cause cancer on October 28, 2011, meaning companies must comply with Proposition 65 with respect to TDCPP by October 28, 2012, just over a week after the NSRL goes into effect. This leaves companies functionally no time to evaluate their existing inventory in light of the NSRL before they must comply with the obligation created by the listing.

TDCPP use has increased in recent years. This is due, in large part, to: (1) the California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation’s publication of test procedures and flammability standards for upholstered furniture in March 2000, and (2) California’s 2006 ban on the use of the flame retardant pentabromodiphenyl ether (pentaBDE). A 2011 article by Heather Stapleton, et al. entitled “Identification of Flame Retardants in Polyurethane Foam Collected from Baby Products,” reported that roughly one-third of the tested baby products that included polyeurethane foam contained TDCPP, a finding that Proposition 65 plaintiffs will no doubt advertise, as waving the flag of protecting children makes for good publicity.

Studies indicate that TDCPP “may be released from the treated product throughout the product life cycle into the indoor environment (e.g., in the dust) leading to human exposure,” and TDCPP has been detected in dust and air samples in homes, day care centers, hospital wards, and offices. See OEHHA, Evidence on the Carcinogenicity of Tris (1,3-Dichloro-2-Propyl) Phosphate at 3 (July 2011) (citing Marklund, et al., “Screening of organophosphorus compounds and their distribution in various indoor environments,” Chemosphere 53(9): 1137-46). Thus, though a regulatory NSRL is a useful first step in determining compliance with Proposition 65, determining and demonstrating that a product does not expose individuals to more than the NSRL of TDCPP will be complicated. Companies that use TDCPP should strongly consider retaining counsel experienced with identifying and working with expert consultants to assess risks of costly and complicated legal action and the best ways to those risks.