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California’s Proposition 65 — formally the Safe Drinking Water and Toxic Enforcement Act of 1986 — requires businesses to provide “clear and reasonable warning” before knowingly and intentionally exposing any individual to a chemical listed by the state as known to cause cancer or reproductive toxicity. The list contains over 900 chemicals. The enforcement mechanism is a private right of action with attorney fee shifting. The result is a compliance regime that costs California businesses hundreds of millions of dollars annually while generating enormous fees for a specialized plaintiff’s bar — and delivering questionable public health benefit.
Who It Applies To
Proposition 65 applies to any business with ten or more employees that does business in California and exposes individuals to listed chemicals. The exposure can occur through products sold in California, through the workplace environment, or through environmental releases. The “business in California” threshold is interpreted broadly — a company that sells products online to California consumers may be subject to Proposition 65 even if it has no physical California presence. Any company with a consumer-facing product sold in California — food, supplements, personal care products, electronics, furniture, building materials, cleaning products, and many others — should assume Proposition 65 applies and get a compliance analysis.
How Enforcement Works
Enforcement is primarily through private “citizen suits” filed by individuals or organizations under Proposition 65’s bounty provisions. Before filing suit, the plaintiff must provide 60 days’ notice to the alleged violator and to the California Attorney General. During this 60-day period, the business can cure the violation — typically by adding the required warning. If the violation is not cured, the plaintiff can file suit seeking civil penalties of up to $2,500 per day per violation and injunctive relief. Attorney fees follow to the prevailing party. In practice, most Proposition 65 cases settle during or shortly after the 60-day notice period, with settlements typically including a compliance commitment and payment of the plaintiff’s attorney fees — often $30,000 to $100,000 regardless of the underlying penalty amount.
The Warning Standard
Proposition 65 warnings must be “clear and reasonable” and must identify at least one chemical for which the warning is given. The Office of Environmental Health Hazard Assessment (OEHHA) has established safe harbor warning language that, if used correctly, satisfies the warning requirement. But the safe harbor language must be placed in a location where consumers are likely to see it before exposure — on product labels, at retail store entrances, or in other conspicuous locations depending on the exposure type. Getting the placement wrong is a Proposition 65 violation even if the language is correct.
The Compliance Cost
Companies doing business in California spend real money on Proposition 65 compliance: chemical testing of products to determine which listed chemicals are present at detectable levels, legal analysis of whether detectable levels exceed “no significant risk” thresholds that trigger warning requirements, label redesigns, website updates, retailer notification programs, and defense against enforcement notices. For a consumer products company with a broad product line, annual Proposition 65 compliance costs can run $50,000 to $200,000. Build it into your California operating budget explicitly.
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