California Proposition 65

Approved by voters in 1986, this law was intended to address public concerns over chemicals and compounds in the environment. This law became commonly known as Prop 65.

Prop 65 requires businesses to provide a “clear and reasonable” warning to California’s consumers before exposing them to chemicals known to the state of California to cause cancer or reproductive harm, unless the business can demonstrate that the exposure is below certain thresholds.

This unclear warning requirement led the California Office of Health Hazard Assessment (OEHHA) to issue regulations providing a safe harbor warning. While not required, businesses are inclined to comply with the safe harbor warnings to avoid Prop 65 enforcement actions.

A public or private enforcer could challenge a non-safe harbor warning and argue that the warning is not clear and reasonable. By compiling, businesses ensure that warnings are deemed “clear and reasonable” and cannot be challenged in court.

California revised its requirements for effective “safe harbor” warning labels required for protection against Proposition 65 lawsuits. The changes to Proposition 65 regulations add specificity to the current regulations.

These new labeling requirements applied to all products manufactured on or after August 30, 2018.

While new warnings were not required on products manufactured before August 30, 2018, bounty hunting attorneys will likely begin raising disputes after that date. ASA strongly recommends adopting new warning language as soon as practicable to avoid this potential aggravation and issues of proof regarding the date of manufacture.

The new warnings for carcinogens and reproductive toxicants now require the naming of at least one or more chemicals on California’s list.

The new warnings require warning/caution symbols and a link to the California website www.P65Warnings.ca.gov.

ASA encourages its members to consult with your legal counsel and determine the best application of the new warnings to protect your company from predatory “bounty hunter” lawsuits in California. Below is a list of attorneys familiar with Prop 65.

These attorneys are familiar with and have experience with Proposition 65 litigation. This is not a definitive list. All ASA’s members are free to choose an attorney that best fits their business needs.