In the past several months, private plaintiffs have issued more than 100 California Proposition 65 notice letters to companies concerning the compound “Tris” in furniture products and in children’s nap mats and mattresses. Tris (also known as TDCPP) was listed as a carcinogen under Proposition 65 in October 2011. Plaintiffs’ lawyers have already filed litigation against some companies relating to Tris, claiming that defendants violated Proposition 65 by failing to warn consumers of exposures to Tris.
Tris is widely used as a flame retardant and to meet flammability standards set by the U.S. Consumer Products Safety Commission for certain products, as well as flammability standards under California’s longstanding regulations. In response to concerns raised by environmental groups and others about the safety of flame retardants, California’s lead agency responsible for state flammability standards is proposing regulatory amendments to make those standards less stringent. The agency believes the amendments will encourage manufacturers to remove chemical flame retardants such as Tris from their products. No California public enforcer has elected to sue on Tris claims, however.
Proposition 65 does not ban the sale of products containing Tris (or any other listed chemical). Instead, Proposition 65 requires warnings if a product causes exposures to Tris above a certain level. It is a Proposition 65 plaintiff’s burden to prove an exposure to Tris. Because Tris may not necessarily be found in areas of furniture exposed to the user, whether the plaintiffs can meet their burden of proof is likely to be a key issue in the litigation.