Industry Alert: New Proposition 65 Warning Regulations

Last year, alone, California’s Proposition 65 led to nearly 700 lawsuits and $25M in settlements. Fortunately, companies who understand and implement the new requirements will be able to significantly decrease their chances of violations.

Currently, if you’re a California business with 10 or more employees or a company that ships products to California, you must provide a ‘clear and reasonable’ warning before knowingly exposing anyone to the 900+ chemicals listed by the Office of Environmental Health Hazard Assessment (OEHHA).

Exceeding the state-established “Safe Harbor Levels” for those chemicals (a No Significant Risk Level (NSRL) for cancer risks and a Maximum Allowable Dose Level (MADL) for birth defects/reproductive risks), necessitates a warning. While a Proposition 65-compliant consultant can pinpoint if and when an exceedance occurs, many companies opt to preemptively include warnings on products which read: “WARNING: This product may contain chemicals known to the State of California to cause cancer, and birth defects, or other reproductive harm.

On August 30, 2018, however, new warning regulations, with more onerous Safe Harbor Warning content, will be in effect.

What is changing?

While Proposition 65 currently only requires stating that toxic chemicals may be present, the more stringent rule requires that companies:

  • State that the product “can expose you to” the chemical they know exists vs. simply that the product “may expose you to”
  • Name at least one listed chemical unless the warning is placed directly on a product label, in which case a truncated or short-form version suffices
  • Reference to educate state residents regarding the chemical
  • Add the visual cue of a triangular yellow warning symbol

In addition, websites and mail order catalogs must also publish Proposition 65 warnings. And if you provide consumer information or online/catalog information in a language other than English, the Proposition 65 language must also be translated accordingly.

What is the penalty for non-compliance?

Businesses who fail to comply can incur civil penalties of $2,500 per day for each violation. And as Starbucks recently found out, Proposition 65 lawsuits, often filed by private citizens or advocacy groups, can be based on scant scientific evidence and still end in the plaintiff’s lucrative favor.

Could I be exempt from Proposition 65 regs?

Yes, if your exposure levels are below the NSRL or MADL, you don’t need to comply. Similarly, if your exposures occur naturally in foods or your discharges don’t “significantly” impact a source of drinking water, you may be exempt.

How can an environmental service company help me?

There are few ways that partnering with a Proposition 65-compliant contractor can help:

  • First and foremost, as the new regulation can potentially ensnare unwary companies with its complexity, your environmental consultant can clearly interpret and apply the regulation to your company to ensure that you
    are protected.

A qualified environmental consultant can accurately determine whether any carcinogenic or reproductive toxin(s) exists, and to what extent. This is key as businesses can no longer use generic warning labels as liability protection and most importantly, those companies who choose not to test expose themselves to “willful ignorance” claims as an added challenge.

  • Your environmental consultant has access to a fully-vetted, nationwide network of high-tech laboratories.
  • Should you receive a 60-day notice regarding a claim, environmental service companies that offer litigation support can help you assess the claim’s validity and provide strategic guidance regarding how to proceed.

Are you ready? If not, Apex can help.

Apex Associated Press (Apex AP) represents contributions from various authors within the Apex professional community.


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