In 1986, voters in California passed the Safe Drinking Water and Toxic Enforcement Act, also known as "Proposition 65," as it was a proposed act voted on and passed by direct voter initiative.
Proposition 65’s primary purpose is to protect drinking water from certain chemicals, and to provide notification to consumers of chemicals in products they purchase. The Proposition requires the State of California to maintain a list of those chemicals known to cause cancer, reproductive harm or birth defects.
If a business produces a product containing significant amounts of a listed chemical, it must give "clear and reasonable" warning to Californians, usually in the form of a product label or posted sign. Businesses are also prohibited from discharging significant amounts of the listed chemicals into drinking water. The list must be updated at least once a year.
Proposition 65 is administered by the Office of Environmental Health Hazard Assessment (OEHHA), a division of the California Environmental Protection Agency (Cal/EPA). The California Attorney General’s office, district attorneys and city attorneys enforce violations of the Proposition.
What are the Elements of Proposition 65?
Proposition 65 states that, "no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.
Once a chemical is added to the list, businesses have 12 months to comply with the warning requirement and 20 months to comply with the discharge ban.
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What Types of Chemicals are on the List?
Naturally occurring and synthetic chemicals that cause cancer, birth defects or reproductive harm are placed on the list. Anything from common household products, to ingredients in pesticides, to chemicals in food and pharmaceuticals may be on the list.
There are currently approximately 900 chemicals listed. The list is available on the OEHHA’s website, and there is also a search engine available to search for specific chemicals.
How Do Chemicals Make the List?
Not every added chemical makes the list, as not every chemical is shown to cause cancer or other harmful side effects. So how does a chemical make the list? Here is the overall process:
- The Carcinogen Identification Committee (CIC) or the Developmental and Reproductive Toxicant (DART) Identification Committee, both part of OEHHA’s Science Advisory board, find that the chemical has been shown to cause cancer, birth defects or reproductive harm.
- An agency that has been designated by CIC or DART as an authoritative body identifies the chemical as causing cancer, birth defects or reproductive harm.
- An agency of the state or federal government declares the chemical to cause cancer, birth defects or reproductive harm.
- Finally, the fourth method of placing a chemical on the list is that chemicals identified in the California Labor Code as causing cancer, birth defects or reproductive harm can be placed on the list.
What is Considered a Clear and Reasonable Warning?
According to the law, “the method employed to transmit the warning must be reasonably calculated, considering the alternative methods under the circumstances, to make the warning message available to the individual prior to exposure.”
Warnings must also clearly state that the chemicals in a product are known to cause cancer, birth defects or reproductive harm. The warning can come in the form of a label on a consumer product, signs posted at a workplace or by publishing a notice in a newspaper.
Who Must Follow Proposition 65?
Proposition 65 applies to all businesses doing business in California with more than 10 employees. Businesses with less than 10 employees and government agencies are exempt.
What are the Consequences for Violating Proposition 65?
The California Attorney General, a district attorney or city attorney in cities with more than 750,000 residents, or any person acting in the public interest may sue a business for violating Proposition 65.
Persons alleging a violation must send written notice of the violation to the business at least 60 days before filing a lawsuit. Government prosecutors are exempt from the 60-day notice requirement.
Businesses who violate Proposition 65 may face penalties as high as $2,500 per violation per day. Additionally, when members of the public bring lawsuits, an infringing business may be required to pay the plaintiff’s legal fees, under California Code of Civil Procedure section 1021.5.
Are There Any Important Proposition 65 Lawsuits?
The California Attorney General, any district attorney and some city attorneys may bring civil suits against businesses in violation of Proposition 65. People v. Baccarat, People v. Burlington Coat Factory, People v. Frito Lay are some well known examples of Prop 65 lawsuits.
In each case, a chemical known to cause harm was present in the products/foods of the companies involved. In each case, the defendant company settled the matter rather than proceed to trial.
Should I Contact an Experienced Attorney?
Since Proposition 65 can lead to steep penalties and fees, businesses that deal with substances on the Proposition 65 list should consult with a litigation attorney about compliance with the statute. If your business has already received a 60-day notice of violation, you should contact an attorney as soon as possible to protect your interests.