California Prop 65 Rule: A Quick Guide

What is Proposition 65?

Proposition 65 is a California state law that requires businesses to warn consumers if they’re being exposed to chemicals that cause birth defects or cancer. This applies both to product warning labels and to premises where Californians might be exposed to these chemicals. The California Office of Environmental Health Hazard Assessment (OEHHA) keeps a master list of chemicals covered by Proposition 65.

Proposition 65 also bans the discharge of dangerous chemicals into any place where the chemicals might reach the water supply.

Businesses with 9 or fewer employees are exempt from Prop. 65, as are government agencies and public water utilities.

What do businesses have to do to comply?

When entering the premises of a business that contains dangerous chemicals, the business has to provide clear and reasonable warnings to the public, usually by providing appropriate signage. Recently, OEHHA has updated the warning requirements; all California businesses will have to have compliant signage by August 30, 2018. SmartSign sells compliant warning signage.

Products that contain carcinogenic or teratogenic substances should have warning labels on them. Alternatively, some companies choose to reformulate their products to remove carcinogenic or teratogenic chemicals, removing the need for a warning label. (Wite-Out, for example, changed its formula to avoid the possibility of facing a Proposition 65 warning label.)

What are the consequences if I don’t comply?

Lawsuits. Any person can file a Proposition 65 lawsuit, and there is an entire cottage industry of California plaintiffs’ attorneys who can and do. Both state and local government lawyers sometimes file lawsuits to enforce Proposition 65 as well. For 2013, in suits brought by members of the public, the average payment, not including defendant’s legal fees, is about $43,000. In suits brought by the Attorney General, the average payment is over $50,000, not including the defendant’s legal fees.