Insights

Quick Look: California Prop 65

What is California Proposition 65?

California Proposition 65 (officially known as the Safe Drinking Water and Toxic Enforcement Act) was passed in 1986 as a way of informing consumers about contaminants in drinking water. The law has since been expanded to include consumer goods — from coffee to rubber fishing worms — and is widely used to inform consumers about contaminants in a variety of contexts.

The law requires California businesses and those doing business in the state to disclose when they knowingly expose consumers to certain chemicals known to cause cancer or reproductive harm. Any business with 10 or more employees must offer a warning when a product could cause exposure to a defined list of contaminants.

The list of chemicals is extensive. Ranging from acetaldehyde (a by-product of metabolized ethanol and a contributor to hangovers) to wood dust, the list includes more than 850 different chemicals.

The law doesn’t ban sale of these chemicals, but rather it necessitates certain disclosure criteria, so Californians can make informed decisions about their exposure. In 2017, businesses paid over $30 million in Proposition 65 settlements.

2018 Regulatory Changes

Proposition 65 has undergone some significant changes over the years. In its initial iteration, the law was limited in its descriptive capability.

Originally, the presence of certain chemicals had to be disclosed but the warning offered little detail beyond that. There was no information on which chemical was present, no information on risk management, and no information on how a person could reduce or eliminate exposure, etc.

Recent revisions have made the warnings more instructive and informative. Effective August 2018, the Office of Environmental Health Hazard Assessment requires greater accuracy in warnings under certain circumstances.

Notable additions to the warnings include:

  • Online warnings required for products bought over the Internet
  • The name of at least one listed chemical
  • Specific warning information on exposures, product, and places
  • Language revision “this product can expose you to [blank]” vs “this product contains [blank]”

Visit the OEHHA site for a comprehensive list of Proposition 65 changes.

What Businesses Need to Know About Proposition 65

Businesses operating in California are required to provide a “clear and reasonable warning” when they knowingly expose consumers to a listed chemical. This warning can be delivered in a number of ways: directly labeling a product, publishing a notice on the company website, posting signs at the workplace, etc.

The California government offers flexibility when it comes to the warning itself. Business leaders have the option to alter warnings if they believe it delivers all the legally-mandated information. For example, businesses can request tailored warnings for eligible products to make disclosure even more accurate and informative.

Warnings must be included on products sold in California. Ecommerce companies that ship to other states can alter packaging to forgo the warning, but anything sent to a California address must include applicable Proposition 65 labeling.

More than anything, business leaders should consider Proposition 65 as an opportunity to provide full disclosure to their customers while also fully protecting themselves against governmental enforcement and lawsuits.