California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) is a Consumer right-to-know warning. This statute requires that Californians receive a “clear and reasonable” warning before exposure to an ever-growing list of over 900 chemicals currently in consumer products, foods and beverages, workplaces and public places which may cause cancer or reproductive toxicity.
Extensive amendments to Proposition 65 were enacted in August 2016 and became effective August 30, 2018. The new warning language and symbol requirements include:
For companies using Shelf Warnings, companies should be reminded that signs should meet the following requirements.
Depending on where in the supply chain your business operates, Proposition 65 compliance in the State of California can vary.
The key objective is that California consumers be made aware if your product contains a known toxin PRIOR to their exposure. The California Office of Environmental Health Hazard Assessment (OEHHA) maintains a list of known toxic chemicals, which surpasses 900. The full list can be found here.
Proposition 65 applies to:
Penalties for violating Proposition 65 by failing to provide warnings can be as high as $2,500 PER VIOLATION PER DAY. In practice, penalties are typically much lower in settlements or other resolutions. In a settlement, Plaintiff recovers 25% of the penalties and ALL attorneys’ fees.
Mid-five figure to mid-six figure settlements are common.
To begin evaluating whether your company or products are subject to Prop 65 notifications and labels, here are 6 tips to get started:
1. Get Familiar with the Prop 65 Website. https://www.p65warnings.ca.gov/ The website has a lot of information and is a great resource for you to best understand how to comply.
2. Talk with your suppliers. Your supplier must provide you notification if their product is subject to Prop 65. Talk with them. Some companies choose to send out a mass mailing to all suppliers to remind them of this duty but this is not a legal requirement.
3. Determine your products subject to Prop 65. Each family of toxins is rooted from certain known sources that are discussed on the P65 Warnings website. Those toxins are:
4. Based on #3, Decide on Your Notification Method. Will this be a general notification of something on the product as a label? Notifications can be signs posted on doors or walls or even on websites.
5. Based on #3, Decide on Your Product Label Location. Will this be a general notification of something on the product as a label? A label can be printed onto the product directly or can be placed on shelves.
6. Educate Customer Facing Team members about Prop 65 compliance. The goal of Prop 65 notifications is to inform a consumer before exposure. Be sure your customer facing team members can help point customers to the right place to understand their exposure. Consumers should be pointed to the P65 Warnings website.
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