Safe Use Determination – California Prop 65

Prop 65 Safe Use Determination or SUD

Retailers should work with our attorneys to obtain a Safe Use Determination or SUD.  The SUD is a written statement issued by the OEHHA which interprets and applies California Prop 65 and associated regulations to your unique set of circumstances and facts.

This request is a complex document which provides information and legal arguments to seek a determination from the OEHHA as to whether the product(s) you sell or distribute produce “an exposure or discharge of a listed chemical resulting from specific business actions or the average use of a specific product is subject to the warning requirement or discharge prohibition.”  We work to help ensure your compliance with Prop 65 and when appropriate, to seek a Safe Use Determination SUD determination that the discharge or exposure of the product(s) in question are at or below the safe harbor numbers established by OEHHA.

There may be existing rulings on your product(s) or class of products which have been established by previous court-approved settlements (consent judgments).

The Prop 65 “Naturally Occurring” Exception for Food

A specific section of the Prop 65 regulations governs the application of “Naturally Occurring” exemptions for food.  If an identified carcinogen or regulated chemical listed under Proposition 65 naturally occurs within the food it may not constitute an “exposure” under the laws and regulations associated with Prop 65.  This would not apply to any chemicals applied to the foods during their planting, growth or harvest.  It would also have to take into consideration exposure created by the process of manufacture or production of consumer product offerings based upon this food.

Under these provisions “A chemical is naturally occurring only to the extent that the chemical did not result from any known human activity. A chemical is naturally occurring in food to the extent that it was not avoidable by good agricultural or good manufacturing practices. The producer, manufacturer, distributor, or holder of the food shall at all times utilize quality control measures that reduce natural chemical contaminants to the “lowest level currently feasible,” based upon existing federal and state laws and regulations.

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.