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May 21, 2018

California Likely To Step Up Enforcement Of Proposition 65—Here’s What You Need To Know

California’s Safe Drinking Water and Toxic Enforcement Act also is known as Proposition 65. The law was enacted in 1986 after it was approved by voter referendum. As the law firm Cohen & Grigsby explained, through warnings/labeling requirements, Proposition 65 “requires businesses to inform consumers about exposures to such chemicals via contact with consumer products sold in California, or via occupational or environmental exposure.”

On August 30, 2018, amended regulations will take effect for what constitutes a clear and reasonable warning. The link above contains sample wording that would comply with the new standards. The Proposition 65 warning can be conveyed in a variety of ways, “including affixing a label on the product itself or its immediate container, including a label in the product packaging, or posting a sign on the store shelf where the product is sold.”

The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program. The California attorney general enforces it, but any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65.

Cohen & Grigsby also notes that recent amendments to the law also “require compliant warnings if consumer products are sold in California via the Internet or a catalog.” The law firm advises, “Because government and private (such as citizen groups) enforcers of Proposition 65 will likely be stepping up their investigations and looking closely at companies’ compliance with the new Safe Harbor Warning regulations after the effective date of August 30, 2018, it is important that manufacturers, packagers, importers, suppliers, and distributors selling products in California that may trigger Proposition 65 evaluate their need for a Proposition 65 Compliance Program or scrutinize and update their existing Proposition 65 Compliance Programs as soon as possible, if they have not already done so.”

The Proposition 65 list of chemicals, which can be found here, is updated annually and now includes more than 900 chemicals. Businesses with less than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources. Penalties for violating Proposition 65 can be as high as $2,500 per violation per day.

California businesses with specific questions on the administration or implementation of Proposition 65, can contact OEHHA’s Proposition 65 program at P65.Questions@oehha.ca.gov or by phone at (916) 445-6900.