Hunton Retail Law Resource

What is California’s Proposition 65?

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”) is one of the most onerous chemical right-to-know statutes in the nation. It prohibits businesses with 10 or more employees, including businesses that merely ship products into California, from exposing people in California to listed chemicals without providing a “clear and reasonable” warning.

Why Should I Care?

Bringing a Prop 65 action is relatively easy and lucrative for private plaintiffs and their counsel. In 2017, there were nearly 700 cases settled with defendants paying more than $25,000,000 in plaintiffs’ attorneys fees and penalties. This does not include defense counsel fees, business interruption and other costs to comply.

OEHHA’s Adoption of New Prop 65 Regulations

In August 2016, California’s Office of Environmental Health Hazard Assessment adopted new regulations that replaced Prop 65’s “clear and reasonable” warning provisions. These new regulations, which allocate responsibility for providing warnings on consumer products sold in California and include new criteria for “safe harbor” warnings, become operative on August 30, 2018. Understanding and timely implementation of these new provisions can greatly decrease your company’s chances of receiving a 60-day Notice of Violation and being embroiled in an enforcement action.

Companies do not need to wait to utilize the new “safe harbor” warnings, though, because the regulations expressly allow for their immediate use. Businesses should also be aware that after August 30, 2018, the prior warning regulations will no longer provide “safe harbor” compliance (subject to some exceptions, such as where there is a court approved judgment that requires specific warnings).

What Changed?

The new Prop 65 warning regulations (1) include new definitions; (2) allocate responsibility for providing warnings when warnings are needed for a consumer product; and, most significantly, (3) detail new “safe harbor” warning content and methods of delivery for consumer products, environmental, occupational and other specific exposures to 900+ Prop 65-listed chemicals.

Read our full alert on what to do for your business.