[author: Meredith Jones-McKeown]

The chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] is commonly used as a flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats). In October 2011, California’s Office of Environmental Health Hazard Assessment (OEHHA) listed TDCPP as a chemical on Proposition 65 list of chemicals.

For retailers and manufacturers selling products containing TDCPP, this means the risk of Proposition 65 enforcement actions if their products are not either labeled with appropriate Proposition 65 warnings or reformulated prior to October 28, 2012, when OEHHA’s one-year safe harbor on TDCPP will expire. Retailers and manufacturers will have to balance the competing requirements of Proposition 65 and California’s Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, which is currently in the process of revising its four-decade-old flammability standard for upholstered furniture (http://www.realestatelanduseandenvironmentallaw.com/environmental-revising-flammability-standards-to-reduce-flame-retardants-in-furniture.html). The current guideline requires furniture and children’s products to withstand igniting when exposed to an open flame for up to twelve seconds.

OEHHA has proposed a “No Significant Risk Level” (NSRL) for TDCPP of 5.4 micrograms per day, meaning that daily exposure below this level would be exempt from Proposition 65. OEHHA’s decision on whether to adopt this NSRL will not be made until after the public comment process closes on July 16, 2012.

For more information about how to navigate Proposition 65’s risks for TDCPP-containing items, contact Meredith Jones-McKeown (mjonesmckeown@sheppardmullin.com), Betsy McDaniel (bmcdaniel@sheppardmullin.com) or Heather Zinkiewicz (hzinkiewicz@sheppardmullin.com).