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California's Proposition 65
Apr. 20, 2007
By: Frederic D. Van Arnam, Jr.


Recently we have been getting inquires from importers who sell merchandise in California about certifying product as compliant with the State of California’s Proposition 65, an initiative that became law in 1986 as the Safe Drinking Water and Toxic Enforcement Act of 1986.  Proposition 65 enacted environmental regulations regarding toxic chemicals that importers are subject to when they sell merchandise in that State, but may be unaware of.  This law was updated in 2003 by Assembly Bill 1756, which took effect on August 11, 2003.   While some of the Proposition 65 controls are intended to protect California’s drinking water sources from contamination by these chemicals, others are more widely applicable and intended to allow California consumers, residents and workers to make informed choices and take precautions about the products they purchase and are exposed to which contain potentially hazardous chemicals.  Proposition 65 applies to retail, mail order or internet sales of products in California.  If you operate in California, or simply sell your products in California, then you are subject to this law. 

 

Proposition 65 requires the Governor to publish a list of chemicals that are known to the State of California to cause cancer, birth defects or other reproductive harm.   The list contains a wide range of chemicals, including dyes, solvents, pesticides, drugs, food additives, byproducts of certain processes, or specialty chemicals used in industrial applications and may be naturally occurring or synthetic.  The list is updated quarterly, (see http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html ), and so importers should review it on a quarterly basis to ensure that they are compliant. 

Any company with ten or more employees that operates within the State or sells products in California must comply with the requirements of Proposition 65.  If a business has products containing chemicals which are on the list, those businesses are: (1) prohibited from knowingly discharging listed chemicals into sources of drinking water; and (2) required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical.  Cal. Code Regs., tit. 22, §§ 25249.5 and 25249.6.  This warning can be given by a variety of means, such as labeling a consumer product, by posting signs at the workplace, or by publishing notices in a newspaper (§ 25249.11(f)).   For the most part, the obligation to label is placed on the producer or packager rather than on the retail seller (except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question).  If the warning is on a label, it must be conspicuous enough to be read and understood by the consumer.

This warning is required unless you are able to demonstrate that the exposure caused by the banned substance poses no significant risk (for carcinogens, no significant risk assuming lifetime exposure, and for chemicals causing birth defects or other reproductive harm, no observable effect assuming exposure at 1000 times the level in question).  Obviously, this exception may be difficult to demonstrate and importers should not use it unless they have compelling proof that the levels in their product pose no risk.  Significantly, the warning label requirement of § 25249.6 also does not apply where there is an exposure for which federal law governs warning that preempts state authority (§ 25249.10(a)).  

The penalties for violations of Proposition 65 are not insignificant: any person that violates or threatens to violate Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed $2,500 per day for each violation (Cal. Code Regs, tit. 22, § 25249.7(b)).   While such a civil action is normally brought by an Attorney General or District Attorney, Proposition 65 also includes a private right of action which may be brought by “any person in the public interest” (§25249.7(d)).

Therefore, every importer doing business in California and purchasing from foreign manufacturers should check with your vendors to confirm whether or not your products comply with Proposition 65.  If your product does contain chemicals on the list, but has no warning label, you should advise customers of the relevant chemical in your product and the amount it contains, discuss with them whether it is subject to the warning requirements and if yes, the method by which you will ensure compliance with Proposition 65. 

If anyone has questions please feel free to contact Rick Van Arnam in the New York office at (212) 725- 0200, or by email at rvanarnam@barnesrichardson.com.


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