The California Office of Environmental Health Hazard Assessment has issued two Notices of Public Hearing seeking comments on related requests for Proposition 65 Safe Use Determinations (SUDs) for diisononyl phthalate (DINP) in vinyl flooring products. The public hearing is scheduled for February 25, 2015, which also is the deadline for written public comments. OEHHA also has published a notice proposing to establish the No Significant Risk Level (NSRL) for DINP at 146 micrograms per day. Public comments on that proposed NSRL are due by February 17, 2015. OEHHA does not plan to hold a public hearing on the proposed NSRL unless requested.
DINP was listed on December 20, 2013, making the Proposition 65 warning requirement effective on December 20, 2014. OEHHA’s listing decision was controversial, and the American Chemistry Council filed suit against the agency in Sacramento County seeking the agency to withdraw its decision. The trial in that lawsuit is set for January 23, 2015.
As stated in the Proposition 65 regulations, a Safe Use Determination “issued by the lead agency [OEHHA] represents the state’s best judgment concerning the application of [Proposition 65] to the particular facts presented in the request.” In other words, it is a determination by OEHHA that a product used in a particular way, or a service provided in a particular way, does not require a Proposition 65 warning. Since Proposition 65 first was enacted in 1986, OEHHA has issued only a handful of SUDs. The SUD process has been criticized as inordinately expensive with little certainty on the front end of what the agency requires, and no certainty on the back end that it will immunize a business from an enforcement action.
Nevertheless, for those handful of products having received SUDs, virtually no enforcement actions have been threatened. With years of active (and expensive) private enforcement activity relating to the other phthalates on the Proposition 65 list, the SUD requests for DINP in vinyl flooring products have been made at an opportune time to try to avoid litigation.