Proposition 65 & Toxic Substances Control Act (TSCA)
Proposition 65 Policy Position
California Proposition 65 requires all businesses with more than ten employees to warn consumers if their products contain threshold amounts of chemicals causing cancer or reproductive harm. The warning requirement applies to any business in the distribution chain, including manufacturers, distributors and retailers, including out-of-state companies selling products in California.
While the California Attorney General or a district attorney can pursue enforcement, most suits are brought by private parties claiming to be "acting in the public interest," who will receive a portion of the fine or settlement ultimately assessed on the alleged violation. Too often, these suits feel like a shakedown as they are expensive to fight, and defendants are forced to settle.
SEMA can assist members in finding laboratories that can test their products for listed chemicals. Laboratory testing is relatively inexpensive and determines if your product contains a listed chemical and how much. SEMA is actively promoting legislation and regulations to decrease the cost of Proposition 65 compliance and is working with the California Office of Environmental Health Hazard Assessment to push for less onerous labeling requirements. SEMA is also active in the Proposition 65 Coalition of the California Chamber of Commerce and is looking for any opportunity to create a friendlier regulatory environment in California.
TSCA Policy Position
The Toxic Substances Control Act (TSCA) is the primary federal statute governing the evaluation, regulation, and restriction of industrial chemicals in the U.S. It grants the U.S. Environmental Protection Agency (EPA) authority to oversee chemicals used in manufacturing, processing, and commerce to protect human health and the environment.
Although Congress through a 2016 updates to the TSCA intended to protect replacement parts, the EPA has applied the exemption inconsistently, at times allowing upstream chemical restrictions that effectively negate downstream exemptions and create replacement-part shortages. Because EPA can regulate chemicals at any point in the supply chain, these upstream bans can disrupt access to materials needed for replacement parts.
SEMA, the Alliance for Automotive Innovation, and other industry groups are advocating for Congress to clarify and strengthen TSCA’s statutory exemption for replacement parts used in complex durable goods. We are seeking a “repair as produced” approach that would allow manufacturers to continue using materials approved at the time a product was originally designed to meet long-term repair, service, and warranty obligations. SEMA, AAI, and the other groups propose making the exemption self-executing and presumptive, permitting limited chemical production solely for replacement parts unless EPA demonstrates that such use significantly contributes to unreasonable risk.
Learn More
California Proposes New Rules Affecting Businesses Selling in the State
California Attorney General Proposition 65 website
List of AG Settlements Regarding Proposition 65
Current Proposition 65 Statutes