California’s Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, has become a critical aspect of business operations for companies selling products regardless of where they are domiciled. The law requires businesses to provide warnings about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. Compliance with Prop 65 is essential for avoiding costly litigation, penalties, and damage to a company’s reputation. Below is a comprehensive guide on what businesses need to know to stay compliant.
The Prop 65 Chemical List: What’s Included?
The cornerstone of Prop 65 is its extensive list of chemicals. This list, maintained by the California Office of Environmental Health Hazard Assessment (OEHHA), currently includes over 900 chemicals. The substances range from industrial chemicals and pesticides to common household items and even naturally occurring substances like lead. The list is dynamic, with updates occurring at least once a year to add new chemicals or adjust the status of existing ones.
For businesses, this means regular monitoring of the list is crucial. A substance that was previously not on the list might be added, necessitating immediate action to comply with the warning requirements. It’s advisable for businesses towork closely with legal counsel who can alert them to trends in enforcement actions and changes that might impact their products or operations.
Prop 65 Warning Requirements: Clarity and Specificity
If your products expose individuals to any of the listed chemicals above safe harbor levels, Prop 65 requires that you provide a “clear and reasonable” warning. This warning must inform consumers or employees about the presence of these chemicals and the potential risks associated with exposure.
The state has set forth specific language and format guidelines that businesses must follow to ensure compliance. These include requirements for the size of the text, the use of the word “WARNING” in capital letters, and the inclusion of a yellow triangle with an exclamation point. Additionally, the warning must clearly state the type of harm—cancer, birth defects, or other reproductive harm—and identify at least one chemical that is causing the exposure.
For products sold online, Prop 65 requires that the warning be displayed on the product page or through a prominently displayed hyperlink with the text “WARNING.” Failure to adhere to these precise guidelines can result in non-compliance, even if a warning is provided. This issue has become ripe for plaintiff enforcement following a California appellate court decision in 2022, and Omnus attorneys have counselled numerous clients on best practices for providing complaint warnings for California purchasers without having to burden purchasers in other locations.
Safe Harbor Levels and Exposure Assessment
One of the unique aspects of Prop 65 is the concept of “safe harbor” levels. These are specific exposure thresholds below which no warning is required. If your product’s exposure level to a listed chemical is below this threshold, the product does not need to have a warning; however, it is critical that this assessment be done by a qualified toxicologist working with counsel familiar with the intricacies of the statute.
To determine whether your product exceeds these levels, businesses must conduct thorough exposure assessments. This often involves scientific testing and analysis to quantify the level of exposure under normal use conditions. For businesses without the resources to conduct these tests in-house, third-party laboratories or consultants specializing in Prop 65 compliance can be invaluable. Omnus counsel, through their extensive practice in this field, can assist with coordinating experts around the country (1).
Strategies for Compliance: Beyond Warnings
While providing warnings is a common strategy for compliance, businesses should also consider alternative or supplementary approaches. Reformulating products to eliminate or reduce the presence of listed chemicals is a proactive strategy that not only helps with compliance but also improves the marketability of the product. Many consumers prefer products that do not carry a Prop 65 warning, associating such warnings with health risks.
Another strategy involves supply chain management. By working closely with suppliers to ensure that raw materials and components are free from Prop 65 chemicals, businesses can mitigate the risk of non-compliance from the outset. Contractual agreements with suppliers can include provisions for indemnification in case a product is found to contain listed chemicals.
Finally, it is recommended for businesses to request confirmation from their suppliers that their products or components do not require a warning under Proposition 65.
Conclusion
Staying compliant with Prop 65 is a dynamic process that requires ongoing attention to chemical listings, exposure assessments, and warning requirements. Businesses that proactively manage their Prop 65 compliance—through reformulation, supply chain management, and clear warnings—can avoid costly penalties and litigation. With the right strategies and legal guidance, businesses can successfully navigate the complexities of Prop 65 and maintain their commitment to consumer safety and regulatory compliance.
Compliance isn’t just about avoiding fines—it’s about maintaining consumer trust and protecting your brand’s reputation in the competitive California market. By understanding and adhering to Prop 65 requirements, businesses can turn a potential legal burden into an opportunity to demonstrate their commitment to safety and quality.
Need expert guidance on Prop 65 compliance? Contact Omnus Law today to safeguard your business and build consumer trust.
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