By: Demetria Mantalis
California business owners are likely familiar with Proposition 65 (“Prop 65”), designed to inform consumers if they may be exposed to potentially harmful material. Even non-California businesses have probably encountered Prop 65 warnings on various products, from food packaging to electronics, and in locations such as restaurants, parking garages, and office buildings. These warnings typically state: “This product contains chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm.” These warnings offer a stark contradiction: they sound incredibly scary, yet are so prevalent that many consumers ignore them. What exactly is Prop 65, and what does it mean for businesses and consumers? Understanding this law is essential for companies selling products in California and for consumers who want to make informed choices about their health and safety.
What Is Prop 65
Enacted through a voter initiative in 1986, Prop 65 is codified in California’s Health and Safety Code sections 25249.5–25249.14. The California Office of Environmental Health Hazard Assessment (“OEHHA”), a division of the California Environmental Protection Agency (“CalEPA”), maintains the official list of chemicals requiring Prop 65 warnings, updating it at least once a year. The list currently includes over 900 substances.
Officially titled the Safe Drinking Water and Toxic Enforcement Act of 1986, the Legislature intended Prop 65 to protect the public from exposure to harmful chemicals. The law applies to all consumer products sold in California, including food and beverages. Businesses must provide warnings if their products, workplaces, or emissions contain any chemicals the state deems hazardous. If these substances exceed California’s safety thresholds, warnings must be displayed to inform the public of potential exposure risks.
How Prop 65 Affects Businesses
Prop 65 applies to nearly all businesses operating in California, as well as companies outside the state that manufacture or sell products intended for the California market. Businesses with ten or more employees must assess whether their products, facilities, or properties contain any listed chemicals and, if so, determine whether warnings are required.
The law covers a wide range of substances, including heavy metals like lead, industrial solvents, pesticides, and phthalates found in plastics. Even naturally occurring chemicals may fall under its scope. If these chemicals exceed the state’s established “safe harbor” limits, businesses must provide “clear and reasonable” warnings before knowingly exposing individuals to them. These warnings commonly appear on product labels, websites, workplace signage, and in public areas such as apartment buildings and restaurants.
Compliance requires diligence. Businesses must evaluate raw materials, conduct chemical testing, and ensure accurate labeling. Failure to comply can result in significant financial penalties and legal action, making proactive compliance crucial.
Enforcement Of Prop 65
Prop 65 enforcement primarily occurs through legal actions initiated by the California Attorney General, district attorneys, city attorneys, or private individuals and organizations acting in the public interest. However, private lawsuits, often filed by environmental organizations or law firms specializing in Prop 65 litigation, account for approximately 95% of enforcement cases.
For businesses, defending against Prop 65 claims can be challenging. Plaintiffs only need to demonstrate that a listed chemical is present, that exposure is possible, and that a “clear and reasonable” warning was not provided. Businesses, on the other hand, must prove that exposure levels fall below the state’s regulatory thresholds or argue other complex legal defenses, such as First Amendment challenges.
Noncompliance can be costly. Businesses found in violation may face civil penalties of up to $2,500 per violation per day. Additionally, failure to comply can result in settlement costs and legal fees. In 2024, businesses paid over $23 million in out-of-court Prop 65 settlements and more than $75 million in judgments.
What Happens If A Business Violates Prop 65?
Violating Prop 65 can lead to financial penalties, legal expenses, and reputational harm. Upon receiving a notice of violation, businesses must act quickly. As a first step, threatened businesses should review the affected products or areas, determine whether the listed chemical is present, and evaluate whether exposure levels necessitate a warning.
To achieve compliance, businesses may need to reformulate products to eliminate hazardous chemicals or take steps to reduce exposure risks. In cases of unavoidable violations, businesses may negotiate settlements and implement future warning measures. Collaborating with suppliers to verify chemical content can also help prevent future compliance issues. Ultimately, businesses that engage proactively with Prop 65 requirements can avoid costly violations.
What Consumers Should Know About Prop 65
Prop 65 warnings are common on everyday products and in public spaces. While these warnings serve to inform the public about potential chemical exposure, they do not necessarily indicate that a product or location is unsafe. The law mandates transparency about the presence of listed chemicals, even when exposure levels are minimal. Many businesses provide warnings as a precaution rather than because a product poses a significant health risk.
When encountering a Prop 65 warning, consumers should consider the context. A warning on a food product may indicate the presence of naturally occurring substances formed during cooking, while a label on an electrical cord may only be relevant if the product is frequently handled or used improperly. Individuals with heightened sensitivity, such as pregnant women or those with pre-existing health conditions, may choose to limit exposure to certain products.
Ultimately, Prop 65 promotes awareness. A warning does not always signify immediate danger but rather provides information that allows consumers to make informed decisions about potential exposure risks.
What This Means for You
Prop 65 is a broad and influential law that affects businesses, property owners, and consumers across California. While its primary goal is to safeguard public health by ensuring transparency about chemical exposure risks, it also presents compliance challenges for businesses. For consumers, understanding Prop 65 warnings can help in making informed choices. While a warning does not always signal immediate danger, it provides valuable insight that enables individuals to weigh risks according to their health concerns.
For businesses, staying informed and proactive is essential. By understanding their obligations under Prop 65, companies can minimize legal risks and contribute to a safer marketplace for all Californians.