Prop. 65 Requirements
needed to be in compliance with the updated
signage requirements of Proposition 65 or
face fines up to $2,500 a day and potential
litigation.
Proposition 65, officially known as the
Safe Drinking Water and Toxic Enforcement
Act of 1986, was intended to address the
growing concern of chemicals in drinking
businesses with 10 or more employees to
provide warnings when they knowingly and
intentionally cause significant exposure
to listed chemicals.
continuing to grow.
These warnings have become fairly
common in the daily life of California
consumers. Since 1988, Proposition 65 has
required the warnings to state information
such as, "a product may contain a chemical"
or "detectable amount of chemicals" known
to the state of California to cause cancer and
birth defects.
for the past 30 years are now ineffective.
New regulations adopted in August
2016, which took full effect on August 30,
2018, mandate that all warnings need to
comply with the updated requirements. For
example, one of the new requirements is
that a triangular yellow warning symbol, the
name of at least one listed chemical, and
the internet address for California's Office of
Environmental Health Hazard Assessment
(OEHHA) appear on each of the warnings.
Failure to comply can result in fines up
to $2,500 a day and legal settlements that
can reach $60,000 to $80,000 for small
businesses.
California with 10 or more employees, you
must comply with these new regulations. Do
not assume these regulations are reserved
for just the consumer products industry.
Proposition 65 also applies to areas and
spaces, such as enclosed parking facilities,
amusement parks, service stations and
designated smoking areas, as a few examples.
To demonstrate the magnitude of these
regulations, in just the last year there have
been suits brought against chocolate, baked
trampolines, flip flops, shea butter and more.
business or out-of-state business operating
in California, Proposition 65 can become a
costly imposition on your operations. If you
are an out-of-state business selling products
in California, you will need to conduct a cost
benefit analysis to determine the practicality
of compliance. Options for out-of-state
businesses include: making California
destined products compliant and not the
remaining products produced, making all
products produced compliant, or pulling
sales in California.
All options prove to be costly decisions
for a business that does not solely operate
in California. Choosing to make all products
compliant could theoretically alienate
consumers in other states who are not
accustomed to these requirements. Dividing
your products by end consumer can also
create frustration in production, as well as
increase manufacturing costs. Pulling sales
in California would evaporate a potential
market of roughly 40 million participants.
Proposition 65 highlights a concern
that all businesses should stay apprised of,
and that is the risks of interstate commerce
and the need to be aware of the rules and
regulations of the states your business
operates in.
For further information on the new
regulations and compliance requirements
please visit: p65warnings.ca.gov or oehha.
ca.gov.
2 thebusinessjournal.com/blog-wheres-your-sign-prop-65-
LLP, focuses his practice on the representation
of businesses, employers and executives in
employment litigation, ERISA litgation and general
business litigation. He has extensive trial and
appellate experience in California courts and in
the Ninth Circuit.
Smith LLP, is a corporate attorney whose practice
includes: general counsel services, including
corporate counsel; business and intellectual
property planning; and transactional counsel
services, including mergers and acquisitions,
entity formation and operation, reorganizations
and general commercial transactions.
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