CA Prop 65

Update on Proposition 65 Short-form Safe Harbor Warning Amendments: OEHHA Delay to Require Restart of Proposed Rulemaking

On May 20, 2022, NAMM received a notification from California’s Office of Environmental Health Hazard Assessment (OEHHA) stating that OEHHA is unable to complete the pending rulemaking within the allotted time to amend sections of the California Code of Regulations related to the short-form safe harbor warnings under Proposition 65 (Register No. Z2020-1229-01) (Title 27, sections 25601, 25602, 25603, and 25607.2). 

As a result, OEHHA must restart the rulemaking process on the short-form amendments with a re-issued regulatory proposal.  OEHHA plans to issue the new rulemaking for public input in the next several weeks. The agency noted that the new rulemaking will likely incorporate some recommendations it received from stakeholders about the previous proposal. 

These are welcome developments as the delay signals that OEHHA recognizes the need to revisit the proposal in response to significant issues raised by the California business community.  NAMM, as a member of a coalition that submitted comments during the rulemaking process, urged OEHHA to withdraw the proposal or, absent a withdrawal, to substantially revise the amendments. NAMM and dozens of stakeholders expressed concerns about the imposition of new and burdensome labeling requirements – especially when businesses continue to struggle with supply chain issues and recovery from the pandemic. 

For more information, please visit the short-form rulemaking webpage.

Formaldehyde Emissions and CA Prop 65 Information and Resources

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.

Formaldehyde Emissions

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.

Additional Resources