California Prop 65

An Executive Overview of California Prop 65

California initially passed Proposition 65 (which was called “The Safe Drinking Water and Toxic Enforcement Act of 1986”) as a voter initiative in 1986.  The primary issue facing business owners today is the provision of a consumer notice which identifies the specific chemicals or compounds contained within a product or food which are known by the State of California to cause cancer, birth defects or reproductive harm.  While there have been various interpretations of the laws and legal proceedings to hammer out the details, a final date for businesses to come into compliance with specific notifications associated with Prop 65 has been established.  It is August 30, 2018.

Who Needs to Know About California’s Proposition 65 or “Prop 65”?

Should you be concerned about upcoming Prop 65 deadlines regarding the manufacture, distribution or sale of commercial or consumer products? It is important for any business with more than 10 employees who produces, manufactures, distributes or offers any commercial or consumer products for sale within the State of California to understand their responsibilities under Prop 65.  This includes all retailers with physical locations in the State of California as well as those who offer catalog sales or online purchases to California residents.

What Risk Do you Face if You Fail to Comply with California’s Prop 65?

The failure to comply with California’s Prop 65 exposes you and your company to civil penalties of up to $2,500 per day for every day of violation, as well plaintiff’s legal fees, the legal costs to represent and defend the action(s) against you as well as many forms of restitution.  A typical settlement in these cases easily reaches tens of thousands to hundreds of thousands of dollars.

An Overview of California’s Prop 65

“No person in the course of doing business shall knowingly or intentionally expose an individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning to such individual, except as provided in Section 25249.10.”  – Cal. Health & Safety Code §25249.6.

Prop 65 generally concerns all types of potential exposure to hundreds of chemicals known by the State of California to cause cancer or reproductive toxicity.  Exposure may be the result of inhalation, direct mouthing or ingestion, hand-to-mouth pathway or dermal absorption.  Exposure can occur in many ways including, but not limited to environmental, occupational or consumer products exposure.

The law defines a consumer products exposure as “an exposure which results from a person’s acquisition, purchase, storage, or other foreseeable use of a consumer good, or any exposure that results from receiving a consumer service.” –  Cal. Code Regs. 22 tit. §12601(b).

It is important to understand there are two sets of regulations under the statute, which are amended from time to time. One set, the “Regulations,” is issued by the OEHHA. The second set, known as the “Enforcement Regulations” is issued by the Office of the Attorney General and governs private enforcement of Prop. 65.

Prop. 65 requires the Governor to publish, at least annually, a list of chemicals known to the state to cause cancer or reproductive toxicity. Cal. Health & Safety Code §25249.8. Chemicals may be included on the Prop. 65 list only if there is a sufficient showing that they in fact cause cancer or reproductive toxicity.

For example, The California Court of Appeals recently held that styrene and vinyl acetate, chemicals listed by the International Agency for Research on Cancer (IARC) as possibly carcinogenic, could not be automatically added to the Prop. 65 list.

A complete and updated list of chemicals can be found on the OEHHA website, http://www.oehha.ca.gov/prop65.html.

Contact Experienced California Proposition 65 Compliance and Litigation Defense Attorneys

Are you concerned about coming into compliance with California Prop 65 as a manufacturer, distributor, retailer, catalog house or online point of sale for consumer products and commercial goods sold within the State of California?  How can you provide a Clear and Reasonable Warning and ensure compliance with all regulations under this complex statute?  Is there a Safe Harbor, Safe Use Determination or SUD, or Naturally Occurring Exemption which would reduce your exposure to litigation and financial consequences under Prop 65?  What should you do if you receive a 60 day Notice or are served papers regarding a lawsuit?  We invite you to contact us or call 866-631-3470 for a free consultation with an experienced California Prop 65 compliance and litigation defense attorney.  Learn how we can help you to avoid costly Prop 65 financial liabilities and protect the profitability of your business.