CA Prop 65
NAMM supports resolution to the “background noise” realities of Prop 65 labeling requirements. NAMM is participating in the Coalition for Accurate Product Labels, with pending federal legislation outlining clear compliance and enforcement for product components.
March 31, 2021: NAMM Joins Over 120 Organizations Opposing Proposed Prop. 65 Amendments
On March 26, NAMM sent a letter in support of the comments filed by the California Chamber of Commerce on behalf of its members and over 120 national and regional organizations and businesses, stating that the current proposal to amend prop. 65 should be withdrawn pending further study and consultation with affected parties.
Specifically, NAMM believes that the proposed changes in the short form “safe harbor” disclosures will impose an undue burden on NAMM’s members who wish to utilize its protections from the increasing number of private plaintiff lawsuits and demands without providing a corresponding benefit to California consumers.
Many musical instruments and accessories do not have “labels” per se but are often sold with minimal packaging or may be accompanied by hang tags displayed at the point of sale. Any amendments should provide a more expansive definition of what constitutes a “label” for disclosure purposes.
The proposed five-square-inch limitation on label size is arbitrary and could easily lead to plaintiffs’ suits based solely on non-compliant label size. Any limitation on label size should be larger and easier to compute, e.g., an even number of square inches.
Elimination of the short form “safe harbor” from catalogs and internet websites will result in confusing disclosures, increase costs, and reduce available space for other consumer-facing information including product specifications, uses, warranty and care.
And, finally, a requirement to disclose at least one OEHHA listed substance on the short-form label will impose significant testing and research costs on distributors who import foreign-made musical instruments (of which there are thousands to choose from in the U.S.) and manufacturers who outsource components or parts to U.S. or offshore sources.
The public comment period for this regulatory action closed on March 29, 2021. NAMM will continue to carefully monitor this important issue and will post updates here.
Formaldehyde Emissions and CA Prop 65 Information and Resources
CA Prop 65
In 1986, California voters approved Proposition 65, an initiative to address their growing concerns about exposure to toxic chemicals. The law requires California to publish a list of chemicals known to cause cancer or reproductive toxicity, and for businesses with ten or more employees to provide warnings when they knowingly and intentionally cause significant exposures to listed chemicals. Penalties for violating Proposition 65 by failing to provide warnings can be as high as $2,500 per violation per day. Prop 65 also provides for enforcement "in the public interest" by private attorneys, who typically send a required 60-day notice to prospective violators and then seek to reach settlement agreements which usually include a monetary payment (shared by the lawyers and the state) and a correction of alleged labeling violations.
In 2013, the Environmental Protection Agency (EPA) issued a proposed rule that would regulate the amount of formaldehyde emissions from composite wood, such as hardwood plywood, medium-density fiberboard, and particleboard. Additionally, the proposed rule would regulate laminated wood products, impose more precise labeling on covered products and require compliance information to be passed down from manufacturer/importer through the distribution chain.
On December 12, 2016, EPA published a final rule to reduce exposure to formaldehyde emissions from certain wood products produced domestically or imported into the United States. The rule regulates laminated wood products, imposes more precise labeling on covered products and requires compliance information to be passed down from manufacturer/importer through the distribution chain. Any musical instrument made of composite or laminate wood is impacted by the new regulations. In July of 2018, the EPA suppressed a draft health assessment on formaldehyde, suggesting that current regulations protecting the public from overexposure to formaldehyde might not be stringent enough to prevent increased risks of developing leukemia, nose and throat cancer, and other illnesses. NAMM will continue to monitor developments.
CARB2 - California Air Resources Board’s (CARB) Phase 2. CARB2 stands for the California Air Resources Board’s (CARB) Phase 2, a stringent standard for formaldehyde emissions from composite wood products, including hardwood plywood (HWPW), particleboard (PB), and medium-density fiberboard (MDF). Composite wood products are panels made from pieces, chips, particles, or fibers of wood bonded together with a resin. In the production of laminate flooring, the core board is made up of medium to high-density fiberboard. This is where the emissions concerns come from.
Note: The formaldehyde emission standards for composite wood products under the EPA final rule, and set by Congress, are identical to the California “Phase 2” formaldehyde emission standards (CARB2). EPA worked to align the other requirements of the federal rule with the California requirements. However, there are a few differences. Unlike the California requirements, among other things, the EPA rule:
- Requires records be kept for three years versus two years;
- Requires importers to provide import certification under TSCA beginning March 22, 2019;
- Requires manufacturers to disclose upon request formaldehyde testing results to their direct purchasers; and
- Requires laminated products not exempted from the definition of hardwood plywood to meet the hardwood plywood formaldehyde emissions standard beginning March 22, 2024.
Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) Regulations. Manufacturers exporting musical instruments to the European Union (EU), or operating within the EU, should be aware of the REACH regulation. Effective June 1, 2007, the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) reg (EC1907/2006) is regarded as the strictest in the world pertaining to chemicals (e.g., glues, resins, etc.) used in the manufacture of a wide variety of products. Learn more.
- Update, 3/8/21: Prop. 65 Public Hearing Thursday March 11. Public Comment Period Extended
NAMM is preparing a response to the proposed changes in Prop 65's short-form warning which would alter the warning language to require of at least one listed chemical in the product being sold and allow the warning only on product labels of five square inches or less. These changes, in the opinion of many, would impose an unnecessary burden on product manufacturers and retailers and quite possibly encourage more private enforcement litigation. Current rules permit a generic disclosure of potential consumer exposure to listed chemicals and do not limit the size of the product label which contains the warning.
The specific warning is not specifically mandated by Prop 65 but using the warning contained in the OEHHA regulations provides a seller with a "safe harbor" against potentially costly lawsuits.
OEHHA has scheduled a public hearing on March 11, 2021, at 10:00 a.m. Information concerning how to participate in the hearing is posted below. The public comment period for this regulatory action is being extended to March 29, 2021, to accommodate the hearing.
In addition to preparing its own comments, NAMM has signed on to a letter to be submitted by the California Chamber of Commerce and dozens of national and statewide associations impacted by the proposed changes.
OEHHA public hearing, March 11, 2021, 10:00 am. View the hearing of the webcast here.
- Update, 2/22/21: Prop. 65 Notice of Public Hearing and Extension of Public Comment Period: Amendments to Article 6, Clear and Reasonable Warnings Short-form Warning
The OEHHA has scheduled a virtual public hearing on March 11, 2021, at 10:00 a.m. (Pacific) on the proposed amendments to Title 27, California Code of Regulations, sections 25601, 25602, 25603, and 25607.1, which would amend certain provisions of the regulations addressing Proposition 65 short-form warnings. Information concerning how to participate in the hearing will be posted on the OEHHA website prior to the hearing.
The public comment period for this proposed action has been extended; submissions must be received by OEHHA by March 29, 2021. Because of limited in-office staffing during the COVID-19 emergency, OEHHA strongly recommends that written comments be submitted electronically through their website at OEHHA’s Public Comments Webpage at https://oehha.ca.gov/comments. Comments submitted in paper form may still be mailed, but delays may occur.
- Update, 1/19/21: Significant Changes to CA Proposition 65 Consumer Product Warnings Proposed - Rules Would Limit Use of Short-Form Labels by Manufacturers, Suppliers and Sellers
On January 8, 2021 California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a proposal to amend the short-form warning regulations for consumer product exposures under Proposition 65. These proposed changes, if adopted as written, would affect a wide range of manufacturers, suppliers and sellers doing business in California.
The official name of Proposition 65 is the “Safe Drinking Water and Toxic Enforcement Act of 1986” and was approved by California voters in 1986. Proposition 65 requires manufacturers, suppliers and retailers to provide “clear and reasonable” warnings to California consumers about exposure to certain chemicals that are known to cause cancer, birth defects or other reproductive harm. These chemicals can be in the products that Californians purchase, either in-state or on-line from out-of-state sellers. California publishes a list of the chemicals which must be updated at least once a year. About 900 chemicals are on the list.
Proposed Short-Form Warning Revisions
OEHHA currently provides two options for product labels: (1) a long-form warning; and (2) a short-form warning. The long-form warning requires at least one name of a listed chemical that could result in exposure from the product’s use. The current short-form warning requires only a brief statement of the potential exposure (e.g., “WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov).
The current regulation also does not limit application of the short-form warning to a maximum label surface area, so many businesses have elected to use the short-form for their consumer products.
Now, however, OEHHA’s proposed amendments are intended to both narrow the circumstances in which a short-form warning can be used, and to make the content of the warning more specific. In its Initial Statement of Reasons (ISOR) for the proposed short-form rulemaking, the agency states, “While OEHHA intended for this warning option to only be used for small products or containers with insufficient space for the longer form warning, businesses have used the short form warning on a wide range of consumer products that have more than enough space for the longer warning. Just as concerning, the short-form warning is also being placed on some products even when the business has no knowledge of an exposure to a listed chemical requiring a Proposition 65 warning.”
The ISOR also provides current examples of current short-form warnings (including one from an unidentified guitar, bass and ukulele website) and examples of short-form warnings that would be compliant with the proposed amended regulations.
OEHHA is proposing to add specificity to and limit the use of short-form warning labels through these changes:
- Only allow use of the short-form warning on products with five square inches or less of label space.
- Only allow use of the short-form warning on products where the package shape or size cannot accommodate a full-length warning.
- Require that the name of at least one chemical be included in the short-form warning and that the terms “risk” and “exposure” be used.
- Eliminate use of short-form warnings for internet and catalog warnings.
As a result of these changes, businesses would need to revise their short-form warnings or replace them with long-form warnings. In addition, short-form warnings in catalogs or on websites must be replaced with long-form warnings.
In the proposal, OEHHA has provided a transition period for compliance with the new rules:
- For businesses planning to use the modified short-form warning, there will be a one-year phase-in period for existing products.
- For products with compliant warnings at the time of manufacture, the regulation provides for an unlimited sell-through period. This is intended to allow businesses to avoid recalling items in order to apply a revised short-form warning.
Based on the timeline in the proposal, the new limitations on short-form labeling would go into effect one year after the final regulations are adopted.
NAMM is working with CalChamber and other stakeholders on an approach to effectively voice our collective concerns about the extra and untimely burdens these extra regulatory requirements will impose on manufacturers and sellers, including those across the music products industry. Wide-spread revisions to product labels, in combination with just a one-year implementation period, could create significant challenges for the many businesses that continue to grapple with the economic consequences of the COVID-19 pandemic.
OEHHA is accepting written comments on the proposed rules until March 8, 2021. We strongly encourage interested NAMM members to submit comments regarding the scope and impact of these proposed rules on your business. Because of limited in-office staffing during the COVID-19 emergency, OEHHA recommends that comments be submitted electronically, rather than in paper form, through this site: https://oehha.ca.gov/comments.
- Update, 4/2/20: NAMM Signs Onto Coalition Letter Asking Proposed Amendments to Sections 25602 and 25607 Be Withdrawn
NAMM has joined with The Consumer Brands Association, the California Chamber of Commerce, and the organizations listed in this letter (collectively known as "the Coalition") to submit comments regarding the Office of Environmental Health Hazard Assessment’s ("OEHHA") Proposed Amendments to Title 27, California Code of Regulations Sections 25602 and 25607 ("Proposed Amendments"). OEHHA’s Proposed Amendments would change the safe harbor warning for sales of almost every consumer product over the internet or through mobile applications, so that if a Prop 65 warning is required for the item, it has to be provided not only at the time of the online purchase but also on the label of the product. The Proposed Amendments therefore essentially eliminate online warnings as a safe harbor warning method. The Coalition respectfully request that the Proposed Amendments to Sections 25602 and 25607 be withdrawn and this is the letter sent to Ms. Monet Vela at OEHHA on March 31, 2020. Check back for updates as they become available.
- Update, 3/3/20: The Coalition for Accurate Product Labels Introduces Bipartisan Labeling Legislation
Accurate Labels Act Will Ensure Science-Based Product Labeling
The Coalition for Accurate Product Labels (CAPL), which includes NAMM and nearly 100 businesses and organizations, joined today to support the bipartisan introduction of the Accurate Labels Act (ALA). The ALA, introduced to address interstate commerce issues relative to state and local labeling requirements such as California’s Proposition 65, would ensure that consumers have appropriate and meaningful information based on a credible, scientific standard when making purchasing decisions while eliminating unnecessary regulatory burdens for businesses looking to expand into new states.
NAMM monitors this issue and provides periodic updates on advocacy efforts and pending legislation. Please visit this page regularly.
- NAMM Policy Webinar Update, "Proposition 65: Is Your Business In Compliance?"
NAMM's Director of Public Affairs and Government Relations, Mary Luehrsen, hosts an informative 40-minute webinar with expert panelists: Chris Cushing, Managing Director, Federal Strategies Team, Nelson Mullins Riley & Scarborough; Jim Goldberg, Managing Partner, Goldberg & Associates, PLLC; and Adam Regele, Policy Advocate, California Chamber of Commerce, providing background, current labeling requirements, state and federal advocacy efforts and many NAMM Member resources. Access the recorded webinar.
Recording timestamp key:
- 5:08 General Proposition 65 Background
- 6:50 Clear and Reasonable Warnings as of Aug. 2018
- 10:45 NAMM Member Resources
- 11:36 CA Chamber of Commerce Prop. 65 Resources
- 12:59 NAMM Member Liability / CA Private Right of Action
- 16:30 Labeling Responsibility: Manufacturer, Distributor, Retailer and E-Commerce Guidelines
- 21:43 Safe Harbor Levels
- 23:00 California Chamber of Commerce Resources: Prop. 65 Broader View Narrative, Ongoing Advocacy Efforts, etc.
- 27:00 Federal Action and Advocacy Update
- 33:30 View of the Fair and Reasonable Warning Horizon
- 41:45 Final Takeaways
NAMM will continue monitoring the issue and will update this page as new information is available. Please check here often for updates and new resources.
- 2020 NAMM Show Policy Forum
2020 NAMM Show Policy Forum
Industry experts provide industry-specific policy updates on revised CITES permit requirements, remote sales tax, Prop 65, Chinese tariffs and NAMM Fly-In plans. Moderated by Mary Luehrsen, Director, Public Affairs and Government Relations, NAMM. Panelists: Jim Goldberg, Managing Partner, Goldberg & Associates, PLLC; Heather Noonan, Vice President for Advocacy, League of American Orchestras; Chris Cushing, Managing Director, Federal Strategies, Nelson Mullins Riley & Scarborough; and Leo Coco, Managing Director, Education Policy, Nelson Mullins Riley & Scarborough.
Timestamp / Segment
- :01 Welcome and Overview
- :55 CITES
- 10:40 Prop 65
- 23:55 E-Commerce
- 33:33 Tariffs
- 43:54 Music Education
- Update, 7/13/18: Prop 65 - California’s Office of Environmental Health Hazard Assessment (OEHHA) Offers Resources
Update, July 13, 2018
California’s Office of Environmental Health Hazard Assessment (OEHHA) offers the following resources for businesses who have questions about the new Proposition 65 warning regulations that will become fully effective on August 30. 2018. (NOTE: These new regulations do not determine when a warning is required, they provide guidance for businesses once they have decided to provide a warning for a given exposure to a listed chemical. Other regulations can help businesses determine when a warning may be required. See Articles 2, 7 and 8 of the Proposition 65 regulations available at this link: California Code of Regulations)
- Questions & Answers for Businesses about the new warning regulations
- Q&A on Internet and Catalog warnings
- A side-by-side comparison of the old and new regulations
- Sample warnings (including translations into other languages)
- Warning symbols in various sizes
California Chamber of Commerce Proposition 65 Coalition
A coalition of more than 200 industry groups and individual businesses is working together to ensure that Proposition 65 is not misused by individual attorneys who use the law solely for personal financial gain. The coalition reviews, comments, and testifies on regulatory and legislative developments related to Proposition 65 warning requirements, chemical listings, compliance issues, and litigation reform. To join the coalition contact: Deanna Tibbett at (916) 444-6670.
- Update, 8/26/19: ECHA Requests Public Comment Regarding Use of Lead
Update, 8/26/19: ECHA Requests Public Comment Regarding Use of Lead
The European Chemicals Agency has requested public comment on the consequences of a restriction on the use of lead in a variety of products, including musical instruments. Lead is currently used in mouthpieces made of brass and silver. Specifically, the ECHA would benefit from comments from manufacturers indicating the impact on cost increases, sales, etc., if lead were restricted or banned.
Comments may be submitted until September 7, 2019 at https://echa.europa.eu/calls-for-comments-and-evidence/-/substance-rev/2....
The Confederation of European Music Industries would appreciate copies of any comments submitted. Send to firstname.lastname@example.org.
The issue of lead used in musical instrument mouthpieces has sparked several lawsuits in California under that jurisdiction's Prop 65 requirement to properly label products containing cancer-causing chemicals and other substances.
- Update, 12/12/18: U.S. Customs and Border Protection Requirements for Importing Regulated Composite Wood Products
12/12/18: U.S. Customs and Border Protection Requirements for Importing Regulated Composite Wood Products
The U.S. Environmental Protection Agency (EPA) published the Formaldehyde Emission Standards for Composite Wood Products final rule on December 12, 2016. This final rule established national formaldehyde emission standards and a third-party certification system for regulated composite wood products (i.e., panels) including hardwood plywood, particleboard, and medium-density fiberboard to ensure those panels are compliant in panel form before being sold to end users or fabricated into component parts or finished goods (e.g., furniture, cabinets, picture frames, toys, and many other goods). These requirements apply to regulated products imported into the United States.
Beginning June 1, 2018, regulated composite wood products and component parts or finished goods containing such panels that are manufactured (in the United States) or imported (into the United States) must be certified as compliant with either the Toxic Substances Control Act (TSCA) Title VI or the California Air Resources Board (CARB) Airborne Toxic Control Measures (ATCM) Phase II emission standards, by a Third-Party Certifier (TPC) approved by CARB and recognized by EPA. This TSCA Title VI third-party certification is different than the import certification under Section 13 of TSCA. Additionally, beginning June 1, 2018 and until March 22, 2019, regulated products certified as compliant with the emission standards must be labeled as compliant with either the TSCA Title VI or the CARB ATCM Phase II emission standards.
After March 22, 2019, regulated composite products and finished goods manufactured in or imported into the United States must be certified as TSCA Title VI compliant by an EPA TSCA Title VI TPC and labeled as such; in other words, after March 22, 2019, a CARB ATCM Phase II-only label is not sufficient.
Importer Specific Requirements: Upon request from EPA, importers must make available to EPA within 30 calendar days certain records that document compliance, as outlined in 40 CFR section 770.30(b). Note that U.S. Customs and Border Protection (CBP) requires a five-year record retention cycle for importers (see 19 C.F.R. § 163.4(a)), while the TSCA Title VI regulation requires a three-year retention cycle.
Also, beginning March 22, 2019, importers are responsible for providing a TSCA Section 13 import certification for articles containing regulated composite wood products, component parts, or finished goods imported into the U.S. customs territory in accordance with 40 CFR section 770.30(d). Although June 1, 2018 is the emission standard compliance date, as noted above, importers are not required to complete import certification under TSCA Section 13 until March 22, 2019.
Background on the EPA TSCA Title VI regulation, including webinars, compliance guides, and frequently asked questions can be accessed on the EPA formaldehyde webpage here: https://www.epa.gov/formaldehyde . If you have any questions related to the EPA’s TSCA Title VI program, contact Todd Coleman at 202-564-1208 or email@example.com.
- Update, 4/10/18: American National Standards Institute Proposal
- Update, 4/4/18: Federal Register Notice
On April 4. 2018, the Environmental Protection Agency issued a Federal Register notice with updated compliance dates for the agency’s Formaldehyde Emissions Standards for Composite Wood Products Final Rule. This change is the result of a lawsuit filed by the Sierra Club which had challenged the agency’s extension of the compliance date to December 12, 2018 from December 12, 2017. The result of the Court’s decision is the following:
- By June 1, 2018, regulated composite wood panels and finished products containing such composite wood panels that are manufactured (in the United States) or imported (into the United States) must be certified as compliant with either the TSCA Title VI or the California Air Resources Board (CARB) Airborne Toxic Control Measures (ATCM) Phase II emission standards, which are set at identical levels, by a third-party certifier (TPC) approved by CARB and recognized by EPA. Previously, these products were required to be TSCA Title VI compliant by December 12, 2018.
- Until March 22, 2019, regulated products certified as compliant with the CARB ATCM Phase II emission standards must be labeled as compliant with either the TSCA Title VI or the CARB ATCM Phase II emission standards. Regulated products manufactured in or imported into the United States after March 22, 2019 may not rely on the CARB reciprocity of 40 CFR 770.15(e) and must be certified and labeled as TSCA Title VI compliant by an EPA TSCA Title VI TPC with all of the required accreditations.
- After March 22, 2019, CARB-approved TPCs must comply with additional accreditation requirements in order to remain recognized as an EPA TSCA Title VI TPC and to continue certifying products as TSCA Title VI compliant.
The information is available under the “Compliance Date Amendment” portion of the Formaldehyde Emission Standards for Composite Wood Products website.
- CA Prop 65: Industry-Relevant FAQs
- What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?
Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply state that a chemical is present that causes cancer or reproductive harm, but they do not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, adopted in August 2016 and that took effect on August 30, 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:
- The name of at least one listed chemical that prompted the warning
- The Internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
- A triangular yellow warning symbol on most warnings
- How Do the New Warnings Compare to the Current Warnings?
A typical current Proposition 65 warning states, “WARNING: This product contains a chemical known to the State of California to cause cancer.” A sample new warning might look like this:
"WARNING This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov."
- Will Businesses Be Required to Provide the New Warnings?
No. The regulation states that a business is not required to use the new safe harbor warning system to comply with the law. However, using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings. Businesses have the option to provide different warnings if they believe they comply with the law. Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.
- Will Products Manufactured Before August 2018 Need to Use the New Warnings?
No. Products manufactured before August 30, 2018 will not need new warnings if they meet the requirements that were in effect at the time of their production.
- CA Prop 65: More Information on Warning Requirements
More Information on Proposition 65 Warning Requirements:
For direct assistance, please contact the Proposition 65 Implementation Program office directly at (916) 445-6900 or email P65.Questions@oehha.ca.gov
Formaldehyde Update: The current prop 65 list currently includes more than 850 chemicals, including formaldehyde, potentially impacting any musical instrument made of composite or laminate wood.
Styrene Update: While Styrene, an ingredient of acrylonitrile butadiene styrene (ABS, a plastic widely used in our industry), was listed as known to cause cancer under Proposition 65 in April of 2016, as of May 2017, the CA Code of Regulations has been amended to downgrade the risk, listing Styrene at a “No Significant Risk Level”.