California’s Proposition 65: New Requirements Effective August 2018

If your business has 10 or more employees and conducts business in California, it is important that you understand Proposition 65, also known as California’s Safe Drinking Water and Toxic Enforcement Act, because private individuals have turned enforcement into a business and extract large fines for violations.

Although enacted in 1986, new requirements of Proposition 65 become effective in August 2018. Hahn Loeser helps clients understand, comply with, and respond to alleged violations of Proposition 65 and we have prepared this overview to address some of the most common issues impacting our clients, taking into consideration the new requirements imposed in 2018.

Background on Proposition 65

Proposition 65 requires that warnings be provided before persons are exposed to chemicals known to cause cancer or reproductive toxicity. The Code requires the State to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. The list is updated periodically, and currently includes about 900 chemicals along with a “safe harbor level” for chemicals. The current list may be found at https://oehha.ca.gov/proposition-65/proposition-65-list

Exposure may occur in a wide variety of contexts, including product sales, food and beverage consumption, environmental exposure, and occupational exposure. This means that virtually every company that manufactures, distributes, or sells goods, food or beverages that reach California consumers, along with every company that employs or hosts individuals in its California place of business, must be cognizant of Proposition 65 and how it relates to their business.

Compliance with Proposition 65

If exposure to a listed chemical above the safe harbor level arises, businesses with 10 or more employees must either reformulate to eliminate the offending chemical or, more commonly, provide a “clear and reasonable” warning before exposing anyone to the listed chemical.

The content of a “clear and reasonable” warning for purposes of Proposition 65, in most cases, consists of:

  • A warning symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline followed by the word WARNING in capitalized, bold font. If the color yellow is not otherwise used on the product label or sign, the triangle may be black and white.

  • The name of at least one of the offending chemical(s) and a specification of whether the chemical(s) cause cancer and/or birth defects or other reproductive harm. If the exposure arises from separate chemicals—one causing cancer and another causing birth defects or other reproductive harm—both chemicals must be identified. If the same chemical causes both cancer and birth defects or other reproductive harm, only that chemical needs to be identified.

  • A statement at the end of the warning that provides: “For more information go to www.P65Warnings.ca.gov/product.”

  • A short form warning is available for smaller products.

  • If the label has information in languages other than English, the warning must be provided in all languages used on the package.

The wording and the transmission of the warning will vary depending on whether the exposure arises in the context of a consumer product, food or beverage, environmental exposure, or occupational exposure. Additional requirements also apply to internet and catalog sales.

A company with questions about the content and transmission of a Proposition 65 warning should consult a qualified attorney to ensure compliance.

What are the repercussions of violations of Proposition 65?

Penalties for violations can be up to $2,500 per day, per violation.

The California Attorney General’s Office, district attorneys, or certain city attorneys may enforce Proposition 65. If none of these governmental entities take action, private individuals may enforce Proposition 65. These private individuals send out a 60-Day Notice to businesses that identify the alleged violation and inform the business that it must either prove compliance with Proposition 65 or negotiate a settlement for the alleged violation within 60 days or the private individual will commence a lawsuit.

The vast majority of Proposition 65 violations are pursued by private individuals. Given the potential for large penalties and recovery of attorney’s fees for a violation of Proposition 65, individuals and entities have turned enforcement of Proposition 65 into a business. These individuals and entities employ private law firms that focus on the enforcement of Proposition 65. They search for potential violations and employ testing agencies to determine if a product contains an offending chemical and does not have the requisite warning. In 2017, over 50,000 60-Day Notices were sent out to businesses alleging violations of Proposition 65. Companies that receive a 60-Day Notice should seek advice from qualified legal counsel experienced with responding to alleged Proposition 65 violations.

Conclusion

Hahn Loeser provides Proposition 65 compliance advice to its clients to help them avoid any alleged violations. Hahn Loeser also assists its clients in resolving alleged violations. If you are concerned that your business is or will become subject to Proposition 65, want to ensure that your existing procedures remain compliant with the new requirements, or if you receive a 60-Day Notice, we encourage you to contact us.

This Client Alert was created for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this Client Alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship or reinstate a concluded lawyer-client relationship. Readers should not act upon this information without consulting legal counsel admitted in the state at issue.