California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (known as “Prop 65”), seeks to ensure that individuals in California are informed about exposure to chemicals known to cause cancer and/or reproductive harm. To comply, businesses are required to provide a clear and reasonable warning before exposing anyone to a listed chemical. Over 900 chemicals are listed by the California Office of Environmental Health Hazard Assessment (OEHHA) as causing cancer, birth defects or other reproductive harm. OEHHA categorizes exposures to these chemicals as “Consumer Product Exposures”, “Occupational Exposures” or “Environmental Exposures”.
PROPOSITION 65 BACKGROUND
Consumer Product Exposure and Residential Pumps. Many of the chemicals listed by OEHHA are found in everyday consumer products, such as electrical cords, electronics and lawnmowers. Even though consumers may use these products regularly without suffering harm, the purpose of Proposition 65 is to provide consumers notice of these chemicals in the products so that they can take whatever measures they feel are appropriate.
Most Wilo residential pumps are sold to and installed by contractors. However, nothing prevents a homeowner from purchasing and installing such a pump himself. Though exposures to listed chemicals during installation are extremely minimal, Wilo has elected to label all of its residential pumps with the following Proposition 65 warning and also include the warning in the accompanying instruction manual.
Occupational Exposure and Industrial/Commercial Pumps. The Proposition 65 regulations also cover California workplace exposures to listed chemicals to the extent that the manufacturer/seller of such chemicals is a California business. Proposition 65 does this by incorporating the federal Hazard Communication Standard (HCS), as well as California’s hazard communication law. However, the California law and regulations do not apply to out-of-state manufacturers who produce products that may be installed in a California workplace. Out-of-state manufacturers are subject to the federal HCS, but that is not enforced by California and thus the California Proposition 65 Occupational Exposure warnings do not apply to Wilo. Wilo pumps designed for the industrial/commercial market are only sold to (a) distributors who sell to that market and (b) OEMs who incorporate the pumps into other products.
Environmental Exposure and Industrial/Commercial Pumps Used for Potable Water. In the case of Wilo pumps that pump sewage, oil, gas or other materials, the exposures are occupational exposures that normally only occur at the times that the pump is installed or maintained. Moreover, exposure to the materials being pumped is not the responsibility of the pump manufacturer.
On the other hand, pumps that can potentially contaminate drinking water are treated differently. The only pumps that Wilo sells that are designed for pumping potable water are pumps that are sold to distributors who then sell to the contractors that install them in commercial, industrial or other non-consumer settings.
Any exposure to Proposition 65 chemicals in installing or servicing the pump itself is an Occupational Exposure to the installer. Nonetheless, when the pump is pumping potable water that is then available for general consumption in a workplace or a facility accessible to the public, any contamination by the pump is an Environmental Exposure. However, applying the warning to the pump itself when it is located in a place where the warning cannot be seen by persons drinking the pumped water defeats the purpose of Proposition 65. Environmental exposure warnings must be provided in a conspicuous manner and under such conditions as to make the warning likely to be seen, read and understood by an ordinary individual in the course of normal daily activity. Consequently, when a Wilo pump designed to pump potable water is installed by a contractor in California, we must rely on the contractor or building owner to provide an appropriate warning if one is applicable, and to provide it in a manner that enables the user to see it.
PUMP SAFETY WARNINGS
Wilo complies with federal HCS warning requirements. More importantly, Wilo selects materials and components with an eye towards safety and is confident that its pumps do not pose an actual health hazard when used as intended, whether they are industrial/commercial pumps that do not carry a Proposition 65 warning or residential pumps that do.
WHAT DISTRIBUTORS SHOULD BE AWARE OF
Distributors who resell Wilo residential pumps must ensure that the warning label on the pump is present at the time of sale. Similarly, Distributors must make sure that the instruction manuals that accompany residential pumps are included in the sale, since those manuals also incorporate the appropriate Proposition 65 warning.
Distributors who resell Wilo commercial/industrial pumps in California need to be aware of their responsibilities under Proposition 65, including two specific situations which such distributors must pay special attention to.
- Wilo pumps that are designed for the industrial/commercial market and are sold to distributors who sell to that market. However, there are a few types of pumps that could conceivably be used directly by homeowners or other consumers. We do not recommend such use. However, if you are a distributor that decides to occasionally sell such a pump for a homeowner’s or consumer’s use outside a commercial or industrial setting, and you sell the pumps in California, it is essential that you apply the appropriate warning to the pump before sale. More specifically, the content and placement of the warnings must comply with section 25606 of Article 6 of the California Code of Regulations. Wilo does not know the particular consumer application involved, so distributors selling any type of pump in California must be responsible for the warnings ultimately used, if any.
- In addition, distributors that sell Wilo pumps that are designed to pump potable water to contractors or direct industrial/commercial users must notify the contractors and users that a warning may be required, and that the warning needs to be placed where a person drinking the water can see it. More specifically, the content and placement of the warning must comply with sections 25604 and 25605 of Article 6 of the California Code of Regulations. Wilo does not know either the location of the pump installation or the particular application involved, so distributors selling potable water pumps in California must be responsible for the warnings ultimately used, if any.
WHAT OEMs SHOULD BE AWARE OF
Weil also sells its pumps to OEMs that incorporate the pumps into other products. These products are designed for and sold to the industrial market.
California-based OEMs that incorporate Wilo pumps into their own products must comply with Proposition 65 and its regulations. Wilo expects that this will generally require application of the occupational workplace warnings required by Proposition 65, but may also require warnings against Environmental Exposures if the final product will be pumping potable water. However, Weil does not know what particular application of use that OEMs make of Weil pumps, so OEMs selling in California must be responsible for applying all applicable warnings to their ultimate product, including consumer warnings on products sold in non-industrial markets and environmental warnings.
Note that OEMs that are not California-based but sell into California must still add consumer Proposition 65 warnings to the end product if the end product is sold for consumer, general household or other non-industrial use.