California Proposition 65: Pros, Cons, and Business Impact

By: Jennifer F. Novak

Lawmakers created California Proposition 65 with good intentions. Specifically, this 1986 law aims to protect the state’s drinking water. It targets chemicals known to cause cancer or reproductive issues. Ideally, consumers use this knowledge to make safe, informed decisions.

However, these warnings might not actually keep us safe. In reality, we find these chemicals in many common daily products. Companies also release them into the environment regularly. Over the past 30 years, the state created a specific list of chemicals. This list now contains over 900 substances. Ultimately, this massive list has turned California Proposition 65 into a heavy burden for many businesses.

When Does California Proposition 65 Mandate a Warning?

A business must post a warning if it exposes people to a listed chemical. Generally, you must place this notice on the product label. Alternatively, you can post it conspicuously at the exposure location. For example, a rental management company might have a listed chemical on site. Therefore, the company must post a clear warning for its tenants.

What The Warnings Actually Say

These warnings mean the business knows about a chemical exposure. However, the warning lacks critical details. For instance, it does not tell you which specific chemicals exist there. It also ignores the exact chemical amount. Furthermore, the label fails to define what specific amount causes harm. In short, the warning only confirms a listed chemical’s presence.

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Enforcing California Proposition 65

The government can sue an alleged violator. Additionally, other groups can act on behalf of the public welfare. For example, consumer advocate groups and private citizens often file lawsuits. Law firms also bring suits to protect injured parties. Importantly, businesses cannot take these lawsuits lightly. In fact, a court can fine a violating business up to $2,500 per day.

California Proposition 65 Pros

Supporters believe these regulations offer effective public protection. Indeed, plaintiffs have won many successful lawsuits under this Act. Consequently, companies have modified children’s products and foods. As a result, these changes make products safer for the consumer. The modifications also allow businesses to remove the warning labels entirely. Overall, the law incentivizes proactive customer safety and empowers consumers to spot potential problems.

California Proposition 65 Cons

Conversely, critics call the warning requirements unnecessary and expensive. Small businesses struggle with these heavy burdens. Many argue the public health benefit does not justify the cost. Furthermore, Californians see these warnings everywhere. They appear in stores, hospitals, and parking lots. Because of this overuse, the warnings feel meaningless. Consequently, consumers often ignore truly significant dangers.

Litigation poses another massive concern. Specifically, anyone can file a lawsuit against a company. They can sue even if chemical levels remain far below harmful limits. Meanwhile, the defendant carries the legal burden of proof. The business must prove the product falls outside the law’s scope. Unfortunately, this process costs a fortune. Therefore, defendants often settle cases just to avoid expensive litigation.

Companies try to avoid these massive legal costs. For this reason, a business might issue a warning for an insignificant chemical amount. As a result, this warning scares away potential buyers. Ultimately, the company loses business over a non-existent threat.

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Success Or Failure?

Economists have reviewed state health statistics. Interestingly, they concluded these regulations do not impact California’s cancer rates. Moreover, no empirical study shows actual public health benefits. Some experts suggest shifting the legal burden of proof. Under this proposal, plaintiffs should bear the cost of proving dangerous chemical exposures. Currently, defendants must prove a lack of detrimental effects. This shift would discourage frivolous lawsuits. Additionally, it would stop forcing businesses into unfair financial settlements.

Does California Proposition 65 Impact You?

The California Office of Environmental Health Hazard Assessment (OEHHA) adopted safe harbor levels for some listed chemicals. Importantly, these levels trigger the warning requirement. Thus, you must comply with the law if your business exceeds this safe harbor level.

Sometimes, the state provides no safe harbor level. In this scenario, if you expose people to a listed chemical, you must give a warning. You can only skip the warning if you prove the exposure poses no significant risk. However, determining this exact risk level costs an enormous amount of money.

We recommend reviewing the Proposition 65 list carefully. Above all, you must know if your business exposes individuals to these chemicals. Therefore, you should consult a qualified professional if this law affects your operations.

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About Us

The Law Office of Jennifer F. Novak provides strategic environmental law representation for property owners and businesses. We specialize in environmental litigation and regulatory compliance, focusing on soil and groundwater remediation, Clean Water Act citizen suits, and Water Board orders (Sections 13304 & 13267). We protect your interests by navigating complex regulations and ensuring fair enforcement.

Contact us today for dedicated environmental legal counsel.