California's Proposition 65
In 1986, California voters approved Proposition 65, an initiative to address their growing concerns about exposure to toxic chemicals. The law requires California to publish a list of chemicals known to cause cancer or reproductive toxicity, and for businesses with 10 or more employees to provide warnings when they knowingly and intentionally cause significant exposures to listed chemicals. Penalties for violating Proposition 65 by failing to provide warnings can be as high as $2,500 per violation per day. Prop 65 also provides for enforcement "in the public interest" by private attorneys, who typically send a required 60-day notice to prospective violators and then seek to reach settlement agreements which usually include a monetary payment (shared by the lawyers and the state) and a correction of alleged labeling violations.
Update, July 13, 2018:
California’s Office of Environmental Health Hazard Assessment (OEHHA) offers the following resources for businesses who have questions about the new Proposition 65 warning regulations that will become fully effective on August 30. 2018. (NOTE: These new regulations do not determine when a warning is required, they provide guidance for businesses once they have decided to provide a warning for a given exposure to a listed chemical. Other regulations can help businesses determine when a warning may be required. See Articles 2, 7 and 8 of the Proposition 65 regulations available at this link: California Code of Regulations)
- Questions & Answers for Businesses about the new warning regulations
- Q&A on Internet and Catalog warnings
- A side-by-side comparison of the old and new regulations
- Sample warnings (including translations into other languages)
- Warning symbols in various sizes are available here
California Chamber of Commerce Proposition 65 Coalition
A coalition of more than 200 industry groups and individual businesses is working together to ensure that Proposition 65 is not misused by individual attorneys who use the law solely for personal financial gain. The coalition reviews, comments, and testifies on regulatory and legislative developments related to Proposition 65 warning requirements, chemical listings, compliance issues, and litigation reform. To join the coalition contact: Deanna Tibbett at (916) 444-6670.
- What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?
Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply state that a chemical is present that causes cancer or reproductive harm, but they do not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, adopted in August 2016 and that took effect on August 30th, 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:
- The name of at least one listed chemical that prompted the warning
- The Internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
- A triangular yellow warning symbol on most warnings
- How Do the New Warnings Compare to the Current Warnings?
A typical current Proposition 65 warning states, “WARNING: This product contains a chemical known to the State of California to cause cancer.” A sample new warning might look like this:
"WARNING This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov."
- Will Businesses Be Required to Provide the New Warnings?
No. The regulation states that a business is not required to use the new safe harbor warning system to comply with the law. However, using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings. Businesses have the option to provide different warnings if they believe they comply with the law. Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.
- Will Products Manufactured Before August 2018 Need to Use the New Warnings?
No. Products manufactured before August 30, 2018 will not need new warnings if they meet the requirements that were in effect at the time of their production.
More Information on Proposition 65 Warning Requirements:
For direct assistance, please contact the Proposition 65 Implementation Program office directly at (916) 445-6900 or email P65.Questions@oehha.ca.gov
Formaldehyde Update: The current prop 65 list currently includes more than 850 chemicals, including formaldehyde, potentially impacting any musical instrument made of composite or laminate wood.
Styrene Update: While Styrene, an ingredient of acrylonitrile butadiene styrene (ABS, a plastic widely used in our industry), was listed as known to cause cancer under Proposition 65 in April of 2016, as of May 2017, the CA Code of Regulations has been amended to downgrade the risk, listing Styrene at a “No Significant Risk Level”.