Proposition 65

What is Proposition 65?

Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is an initiative administered by The Office of Environmental Health Hazard Assessment (OEHHA) that requires businesses to provide warnings to Californians about significant exposures to chemicals that are known to cause cancer, birth defects, or other reproductive harm. By providing this information, consumers will know what chemicals they and their families are exposed to so they can make informed decisions when purchasing goods. Prop 65 also prohibits businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.

As required by Prop 65, California has published a list of chemicals known to cause cancer, birth defects, or other reproductive harm. This list of chemicals includes a wide range of naturally occurring and synthetic chemicals that are additives or ingredients in pesticides, common household products, food, drugs, dyes, and solvents. Listed chemicals may also be used in manufacturing and construction or be a byproduct of a chemical process, such as motor vehicle exhaust. The list is updated at least once per year and has grown to include approximately 900 chemicals since it was first published in 1987.

California also publishes a list of safe harbor levels below which businesses are exempt from the warning requirement and discharge prohibition as the exposure is so low as to create no significant risk.

Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity
No Significant Risk Levels (NSRLs) for cancer-causing chemicals

Proposition 65 can be enforced by any district or city attorney, any individual acting in the public interest may file a lawsuit against businesses alleged to be in violation of the law. Lawsuits have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, and private citizens and law firms. Penalties for violating Prop 65 by failing to provide notices can be as high as $2,500 per violation per day.

Who does Proposition 65 apply to?

Any business selling products directly or indirectly to consumers (retailers, distributors, manufacturers, etc.) in the State of California must assess their products for the presence of chemicals known to the state to cause cancer or reproductive toxicity. Additionally, any business operating in the State of California must assess their practices to determine if one or more chemicals identified on the State’s list are being discharged or released into water or onto or into land where such chemicals pass or probably will pass into a source of drinking water.

What does your business need to do about it?

For products sold in the State of California that contain one or more of the identified chemicals, the business must provide clear and reasonable warning. This warning may be given by labeling a consumer product with a warning symbol consisting of a black exclamation point in a yellow equilateral triangle with bold black outline and the word WARNING in bold type accompanied by the following language:

WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

For products that may be sold or distributed into the State of California by an entity other than the manufacturer, the business should be prepared to provide the customer with a statement declaring if a Prop 65 warning must accompany the product for retail sales. Retail sellers are responsible for placement and maintenance of the warning materials they have received.

Any company discharging or releasing chemicals into sources or potential sources of drinking water must cease discharging listed chemicals within 20 months of the chemical being listed.

Exemptions Include:

Governmental agencies and public water utilities
Businesses with nine or fewer employees
Exposure levels and discharges to drinking water below safe harbor levels
Exposure to listed chemicals that occur naturally in foods

How Can Kellerman Consulting Help?

As part of any GFSI program, Kellerman Consulting will help you consider the requirements for your site to comply with applicable food safety legislation including California’s Proposition 65.