Environmental Assessment

California Prop 65 and Violations

Companies selling products in California are responsible for implementing the Proposition 65, or Prop 65 regulation. California Proposition 65 violations could expose your business to lawsuits. Accordingly, the most economical approach is to take proactive steps to address California Proposition 65 law.

What is California Proposition 65?

Formerly known as the Safe Drinking Water and Toxic Enforcement Act of 1986, California Proposition 65 (or simply Prop 65) is a law that requires businesses to notify California residents of significant exposure to hazardous chemicals used in their products. These substances could cause cancer, birth abnormalities, or other reproductive harm. Companies should give these notifications through clear and reasonable warnings.

Regardless of whether a company has a physical presence in California, this regulation applies to products placed in the California Market. Additionally, Prop 65 applies to California businesses with 10 or more employees involved in the supply chain for products sold in this state. Correspondingly, all supply chain participants, including producers, distributors, suppliers, retailers, and packagers, are responsible for implementing Prop 65 requirements.

California Proposition 65

Who Administers California Proposition 65?

CalEPA

The Office of Environmental Health Hazard Assessment (OEHHA), part of the California Environmental Protection Agency (CalEPA), administers the Prop 65 regulation. With this intention, OEHHA keeps a list of recognized carcinogens and reproductive toxins. The agency updates the list at least once a year by adding new chemicals. The list contains more than 900 substances, according to the update of February 25, 2022. Notably, once the agency adds a new chemical to the list, it takes 12 months before the warning requirements apply.

Which Products are Exempt from California Prop 65 Warning?

Businesses don’t need to label their product if:

  • The product does not contain a listed chemical; or
  • The exposure level is so low that it falls under the “safe harbor” provisions of the act, which are:
    • No Significant Risk Levels
    • Maximum Daily Allowable Limits

How is California Prop 65 Implemented?

The California Attorney General’s Office, any district attorney, and specific city attorneys of a city with a population greater than 750,000 may enforce Prop 65 through civil actions.

Similarly, private parties operating in the public interest may file Proposition 65 lawsuits. Plaintiffs must notify the person who is allegedly violating the law, the Attorney General, the district attorneys, and specific city attorneys where the alleged violation believably happened, according to Prop 65. This notice, referred to as a 60-day Notice of Violation, must be submitted to these parties at least 60 days before taking any legal action. Additionally, the notice must meet all requirements outlined in the regulations and provide sufficient information regarding the alleged infraction. You can find these requirements in the CA Code of Regulations, Title 27, Section 25903, and Title 11, Sections 3100-3102.

Furthermore, the California Attorney General’s website contains a database of 60-day notices for Prop 65 violations. This database has been recording notices since 1988.

What are the Penalties for Violating the California Proposition 65?

Prop 65 Penalties

Failure to give clear and reasonable exposure warnings constitutes a violation of Proposition 65 for a business. Consequently, defending and responding to the claimed violation could result in significant liabilities and expenses. Firstly, a court could force the company to stop violating the law. Moreover, the court could impose fines of up to $2,500 per violation per day on the business.

 As a result, the fees and penalties in 2020 for at-risk industries exceeded $42 million.

What Products and Chemicals are Most Commonly the Targets of 60-Day Notices for Prop 65 Violations?

Generally, the California Attorney General’s Office receives thousands of 60-day notices for Proposition 65 violations each year. These are the substances most mentioned in notices:

Chemicals

Industries (Product Examples)

Acrylamide

Food (e.g., crispy snack foods)

Bisphenol A (BPA)

  • Consumer goods (e.g., plastic containers, headphones, phone cases)


  • Food

Cadmium

  • Consumer goods


  • Food (e.g., seafood and seaweed snacks)


  • Dietary Supplements

Diethanolamine

Consumer goods (e.g., sunscreens, soaps)

Hexavalent chromium

  • Metals


  • Leather

Lead and lead compounds

  • Consumer goods (e.g., tools, wires)


  • Food


  • Dietary supplements

N-Nitrosodiethylamine

Consumer goods (e.g., swim caps)

Phthalates (especially DEHP, ad also DBP and DINP)

  • Plastics (e.g., PVC products, vinyl handles)


  • Consumer goods (Fashion accessories)

Among these substances, the majority of 60-day notices for violation of Prop 65 are usually for Phthalates (mostly Di (2-Ethylhexyl) phthalate – DEHP) and Lead and lead compounds. In March 2022, phthalates and lead were respectively the subjects of 41% and 39% of the monthly notifications. Most phthalates notices were for bags & cases, whereas lead notices were for externally decorated glass and ceramics.

Lead California Proposition 65

Which industries are Most at Risk?

Metal

According to an analysis of the 60-day notices for violation of California Prop 65 in 2020, consumer products from the following industries are at the highest risk of legal actions:

  • Plastics
  • Ceramics
  • Metals
  • Food
  • Leather
  • Dietary supplements, etc.

How to Protect your Business from Prop 65 Penalties?

Companies can implement several approaches to avoid penalties related to Prop 65 violations, such as:

  • Conduct product testing and audits
  • Provide pre-emptive warnings
  • Obtain confirmation of conformity from upstream suppliers
  • Prepare compliance plans
  • Investigate whether similar products have been the subject of Notices of Violations
  • Pay special attention to substances that are frequently the subject of Notices of Violations
  • Maintain records properly
  • Communicate with employees about any changes in standards or compliance strategies
Product Review

To summarize, understanding California Proposition 65 chemicals contaminant risks and exposures of your product, as well as the related warning requirements, will help you avoid lawsuit fines and costs.

It is worth noting that other Californian regulations, such as California RoHS for electrical and electronic equipment, may apply to your products.

Do you have questions regarding your responsibility towards California Proposition 65? Contact Enviropass!