What is Proposition 65?

In 1986, California voters approved an initiative to address concerns about exposure to toxic chemicals. The basic outcome of the vote generated the original ruling name of Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. Proposition 65 entails a list of chemicals known to cause cancer, birth defects or other reproductive harm. The list, originally published in 1987, includes approximately 800 chemicals. At least once a year, the state of California is required to update and publish the list of chemicals. The Office of Environmental Health Hazard Assessment (OEHHA), which is affiliated with the California Environmental Protection Agency (Cal/EPA), administers the Proposition 65 program. They, in-turn, evaluate up-to-date scientific information on respective substances being considered for additions to the Proposition 65 chemical list.

Requirements For Companies Conducting Business in California

The California Safe Drinking Water and Toxic Enforcement Act of 1986 was signed into law on August 9, 2003. California businesses with fewer than ten employees, as well as government agencies, are exempt from the Proposition 65 warning requirements. They are also exempt from the warning requirement and discharge prohibition if the exposures they create are so low “as to create no significant risk of cancer or birth defects or other reproductive harm.” Businesses other than these are required to indicate or provide a “clear and reasonable warning, before knowingly and/or intentionally exposing any individuals to a chemical known to the state to cause cancer or reproductive toxicity.” These chemicals are listed in the Proposition 65 chemical list. Once a chemical becomes listed, businesses have twelve months to comply with the specified warning requirements. The warning can be applied in several ways, including:

• Labeling the consumer products
• Posting signs at the workplace
• Distributing notices
• Publishing notifications within newspapers

In addition, knowingly discharging listed chemicals into drinking water sources is prohibited by Proposition 65 if/when a new chemical has been listed. Businesses have 20 months to comply with the chemical discharge prohibition. Violation penalties for failing to provide Proposition 65 notification or posting notices can amount to as much as $2,500.00 per each violation, per day of violation. In turn, the warning requirements have provided an incentive for manufacturers to remove listed chemicals from their products. An example of this is the Proposition 65 enforcement action, which directed manufacturers to decrease lead content in ceramics and prompted wineries to eliminate the use of lead-containing foil closure material on wine bottles. Another example includes enforcing the elimination of chemicals, such as trichloroethylene (commonly used in correction fluids and other similar products), which is shown to cause cancer and birth defects.

Safe Harbor Level

OEHHA develops numerical guidance levels identified as Safe Harbor Levels. The numerical guidance levels are an effort to assist businesses in determining if they may have “safe harbor” from Proposition 65 warning requirements and discharge prohibitions. Safe Harbor Levels have been established for many of the chemicals listed under Proposition 65. They include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals that cause reproductive toxicity. If exposure to a chemical occurs, or if discharges into drinking water sources are at or below the safe harbor level, they are exempt from the Proposition 65 warning requirements.

Enforcing Proposition 65

The California Attorney General’s Office is the primary enforcer of Proposition 65. However, those district attorneys or city attorneys (within cities with populations that exceed 750,000) may also enforce Proposition 65. In addition, those individuals choosing to act within the public’s interest can also enforce the law by taking necessary actions to file a lawsuit against the business allegedly thought to be in violation of Proposition 65. Proposition 65 has benefited those in California, but at a cost for many companies conducting business there, due to additional incurred expenses of complying with the law. Expenses incurred can include providing and installing warning information, testing products, reduction of discharges and the research and development of alternative chemicals to use in place of a listed chemical. In an effort to assist Californians in understanding and complying with Proposition 65, OEHHA is working to make the law’s regulatory requirements as clear as possible in an open public process.

Chemical Types Listed in Proposition 65

Both synthetic and naturally-occurring chemicals that are known to cause cancer, birth defects or other reproductive harm are among many of those that appear on the Proposition 65 chemical list. Listed chemicals are not necessarily individual or pure chemicals; they could be mixtures that include additives and/or ingredients in products, such as drugs, pesticides, solvents, common household products, dyes or certain foods. Some of the chemicals on the list may even be ingredients in chemicals being used in the construction of items or their manufacturing processes. They could also be by-products of combustion, such as emissions from vehicle exhaust.

Additional Proposition 65 Information

For general information on Proposition 65 chemicals, contact OEHHA’s Proposition 65 program at (916) 445-6900 or visit http://www.oehha.ca.gov/prop65.html.

For enforcement reference information, contact the California Attorney General’s Office at (510) 622-2160 or visit

http://ag.ca.gov/prop65.

Commonly Asked Questions

Q: Is a product safe if it carries a Proposition 65 warning?

A: The fact that a product bears a Proposition 65 warning does not mean by itself that the product is unsafe. You could think of Proposition 65 more as a “right to know” law than a pure product safety law. Voters who approved Proposition 65 in 1986 intended that Californians should have a right to know when they may be exposed to chemicals that cause cancer or reproductive harm.

Sources

http://www.oehha.ca.gov/prop65/law/P65law72003.html
http://oehha.ca.gov
http://www.calepa.ca.gov
http://oehha.ca.gov/prop65/pdf/P65Plain.pdf
http://oehha.ca.gov/prop65/prop65_list/Newlist.html
http://oag.ca.gov/prop65
http://oehha.ca.gov/prop65/policy_procedure/CICmembers.html
http://oehha.ca.gov/prop65/getNSRLs.html

The information contained in this article is intended for general information purposes only and is based on information available as of the initial date of publication. No representation is made that the information or references are complete or remain current. This article is not a substitute for review of current applicable government regulations, industry standards, or other standards specific to your business and/or activities and should not be construed as legal advice or opinion. Readers with specific questions should refer to the applicable standards or consult with an attorney.