Greenberg Glusker LLP

As schools reopen and in-person learning resumes, school teachers and administrators should be aware of laws regulating the purchasing of art supplies in schools. A preview of some of these laws is as follows:

  • The California Education Code (Cal. Education Code § 32064, et seq.) prohibits the purchase of art materials containing toxic substances for grades K-6. Art products for grades 7-12 must be properly labeled to inform users of long-term (chronic) health risks and instructions for safe use. These purchasing requirements apply to schools, school districts, and governing authorities of private schools. The California Education Code also requires the regulatory agency Office of Environmental Health Hazard Assessment (“OEHHA”) to develop a list of art and craft materials that are prohibited for use in grades K-6 (Education Code § 32066).
  • Proposition 65 (Cal. Health and Safety Code § 25249.5 et seq.) requires businesses to provide warnings to Californians before exposing them to chemicals known to the State of California to cause cancer, birth defects, or reproductive harm. Some art supplies may fall within these notice requirements.
  • The Federal Hazardous Substances Act (15 U.S.C. § 1277, et seq.) requires art product labels to include information about acute and chronic health hazards and safe handling instructions. The law also prohibits hazardous substances in children’s products, including children’s art materials.
  • The Federal Consumer Product Safety Improvement Act (15 U.S.C. § 2057 et seq.) limits lead in children’s products.

Last month, OEHHA released a list of “Art Materials that cannot be purchased for use in kindergarten through 6th grade.” The list is intended to assist schools in complying with the California Education Code purchasing requirements. The guidelines also ban products containing Prop 65 chemicals, stating that “in addition to [the] listed items, products accompanied by a Proposition 65 warning should not be purchased for use in grades K-6.”

The list is surprising, as it includes well-known household brands and commonplace items. A few observations are worth mentioning: (1) there are a LOT of prohibited adhesives, including ones manufactured by well-known companies; (2) even some cleaners and solvents with the words “odorless” and “Low VOC” in their names are banned; (3) certain glitters appear on the list.

A few tips for schools, including from OEHHA, include:

  • Perform an inventory of products in classrooms and remove any listed on the ban list. Do not purchase products on the ban list.
  • Purchase water-based washable markers. Do not purchase scented markers since they encourage sniffing and tasting.
  • Pay attention to product labels and warnings.
    • Make sure the product has the “Conforms to ASTM D-4236” label.
    • Do not purchase products with labels indicating a health hazard.
    • Do not purchase products that have a California Proposition 65 warning either on the product or on a sign at the time of sale.
  • Do not rely solely on manufacturers’ claims in choosing products; always check for appropriate labels and health warnings as described above.
    • Markers labeled as “non-toxic” or “low-odor” may still contain ingredients like alcohol, which can cause headache and dizziness.
    • If markers are advertised as “suitable for children,” be sure to check for the legally required labels to verify such claims.

If in doubt, it is prudent to contact regulatory counsel to advise whether products are compliant.

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