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Vertullo: Is Your Company A Lawsuit Target?

Vertullo: Is Your Company A Lawsuit Target?
May 09
11:45 2018

While there are no recorded incidents of fastener workers regarding the California Prop 65 chemicals and no suits in fastener workplaces, Carmen Vertullo suggested “looking at your company as a target for a lawsuit.”

There are lawsuits by “bounty hunter compliance vultures if you fail to warn,” Vertullo of San Diego-based Carver Consulting told the Pacific-West Fastener Association. “It costs money to either cave in or fight the lawsuit. Chances are if you are targeted, you are guilty – but not necessarily.”

Chemicals of concern to the fastener industry include hexavalent chromium used in older zinc plating; cadmium still used in some fastener plating; lead – primarily in brass; and nickel in 300 series stainless steel and some plated fasteners.

There are questions about such items as air gun brass tips, Vertullo noted.

“One day someone will challenge,” he predicted.

To protect your company first, have a “compliance person” on staff or a “go to” person, Vertullo suggested.

“Get help from a consultant; read, research and ask around; see what competitors, suppliers and customers are doing; attend educational programs; and ‘do something, do little or do nothing’.”

Proposition 65 is officially called the Safe Drinking Water and Toxic Enforcement Act. It was passed by California voters by a 63% to 37% margin.

“It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects or other reproductive harm,” Vertullo explained. He termed Prop 65 a “right to know” law.

Prop 65 requires the state of California to publish a list of chemicals known to cause cancer, birth defects or reproductive harm; requires companies to provide warnings if their products – regardless of manufacturing location – or facilities can expose Californians to a listed chemical above threshold levels; and prohibits California businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.

Prop 65 does not ban or regulate use of the chemicals or register use, nor does it enforce or provide surveillance. It requires businesses to provide warnings if Californians can be exposed to the chemicals above threshold levels.

What is Prop 65 to the fastener industry?

It involves Country-of-Origin labeling, RoHS, REACH, WEE, RoHS 2, ELV and DFars involvement, Conflict Minerals and U.S. Customs & Border Protection.  

Vertullo also mentioned the U.S. Fastener Quality Act. He rated the FQA as now “irrelevant, not important.” However, the FQA “served a purpose as it raised our awareness,” Vertullo said.

The Certified Fastener Specialist program came out of the FQA process, he added.

Vertullo questioned whether labeling can “make you a target for a lawsuit.”

A question fastener companies should ask themselves: Do your fasteners or workplaces have any of the listed chemicals in them in concentrations above the threshold levels?  

Regulations place primary responsibility on providing warnings on producers, packagers, importers, suppliers or distributors.  

“For consumer product exposures, businesses in those categories must either provide a warning on the product, or provide notice and warning materials to the ‘authorized agent’ for a retailer.”

  • Businesses with fewer than 10 employees are exempt from Prop 65.
  • Businesses are exempt when exposures are so low so there is no significant cancer risk or are below levels observed to cause birth defects or other reproductive harm.

Vertullo said the fastener industry has not been “low-hanging fruit for bounty hunters.”  

“Bounty hunters go after actual violations, either in exposure or labeling or both,” Vertullo said. “Bounty hunters know who the vulnerable are.”

Labeling fasteners and providing warnings to customers helps “protect your assets,” Vertullo advised.

Vertullo noted that even Disneyland has Prop 65 warning signs posted at the entrance.

More information in available from the Industrial Fasteners Institute memo on Prop 65:  oehha.ca.gov/proposition-65/about-proposition-65.

For information, contact executive director Vickie Lester. Tel: 714 484-4747 Email: info@Pac-West.org Web: Pac-West.org

From the Fastener History section of GlobalFastenerNews.com: 2009 FIN – LAFA & WAFD Approve ‘Unification’ as Pacific-West Fastener Association

For more news on the fastener industry, click here.

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