Proposition 65: What It Is and What Companies Need to Do

There’s a lot of buzz right now around California’s Proposition 65, which leaves many suppliers and retailers wondering how it affects them, what they should know, and what to do about it to ensure compliance. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act, was enacted in November 1986 and requires businesses to give warnings to California consumers about exposures to chemicals that cause cancer or birth defects and reproductive harm. These exposures can come from facilities, equipment, and/or consumer goods. By requiring warnings of exposures, the law suggests that California consumers are better equipped to make informed decisions about the places they visit and the products they buy.

Proposition 65 is administered by the Office of Environmental Health Hazard Assessment (OEHHA), part of the California EPA. OEHHA determines which chemicals meet the scientific and legal requirements for placement on the Proposition 65 list, which must be updated annually and has grown to include more than 900 chemicals since it was first published in 1987. OEHHA also publishes maximum permissible exposure levels above which written warnings are required. These include No Significant Risk Levels (NSRLs) for carcinogens and Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity.

The Warning

Under the current law (effective until Aug. 30, 2018), if the use of a food product sold to California consumers will expose them to a Proposition 65 chemical at levels exceeding the NSRLs and/or MADLs, then the food product label must contain a warning or there must be a warning on the shelf where the product is stocked. Under the upcoming revisions to Proposition 65, if the use of a food product sold to California consumers will expose them to a Proposition 65 chemical at levels exceeding the NSRLs and/or MADLs, then the food product label or shelf sign must contain a new statement:

“WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and/or (as appropriate) [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.”

Proposition 65 was designed to be enforced by the California Attorney General Office and/or any district or city attorney for cities whose population exceeds 750,000. In the event a consumer food product is discovered to contain chemicals at levels that exceed the permissible NSRLs and/or MADLs, and the consumer product does not have a warning, these officials could bring a lawsuit against the offending companies. Because of the vast number of potential exposures and violations, consumer advocacy groups, private citizens, and law firms are also allowed to enforce Proposition 65 on the government’s behalf.

Need to Know

Because of the Proposition 65 changes, food manufacturers should continuously stay abreast of new notices to ensure that the types of food products they are manufacturing are not being targeted. Manufacturers should also consider testing their products against the standards established under Proposition 65 to ensure they are compliant. If not, they will require a warning.

Food retailers should also read the new notices to ensure that the food products they sell are not being targeted. Retailers should send notices to their suppliers inquiring about whether the products they are purchasing may contain Proposition 65 chemicals exceeding the established NSRLs and/or MADLs and, if so, whether they require warnings. Each of these inquiries and responses should be carefully managed and documented.

Bottom line for the new Proposition 65 regulations is that retailers and suppliers not actively working toward compliance risk more than just a slap on the wrist. California is a litigious state and if executives doing business there are not compliant they could wind up out of business.