Safe Drinking Water and Toxic Enforcement Act (Proposition 65)
Proposition 65, also the Safe Drinking Water and Toxic Enforcement Act, has been formulated to safeguard the general public from exposure to harmful chemicals in their drinking water, surroundings, and consumer goods. To comply with Proposition 65, California must release an annual inventory of chemicals that are detrimental to reproductive health or have been identified as causing cancer and congenital disabilities. Enterprises that operate or vend their products in California are required to apprise the public about the presence of substantial quantities of these chemicals in their residences, workplaces, and consumer goods.
What are the Requirements of Proposition 65?
Proposition 65 mandates that the Governor of California publish a comprehensive list of chemicals acknowledged to cause cancer, congenital disabilities, or other reproductive harm. This list comprises over 900 chemicals, including solvents, plasticizers, metals, additives, and ingredients commonly found in household, commercial, and office products. Even naturally occurring chemicals, such as lead, which may be present in food products, are included. The list must be updated annually.
In addition to the publication of this list, Proposition 65 imposes specific controls on the use of these chemicals. These controls are intended to safeguard California’s drinking water sources from contamination, enable consumers to make informed purchasing decisions, and empower residents and workers to take suitable measures to protect themselves from exposure to the chemicals.
Furthermore, Proposition 65 incentivizes manufacturers to eliminate listed chemicals from their products by creating a market-based approach.
While Proposition 65 offers numerous benefits, it also entails certain costs. Businesses must incur expenses to test their products, develop alternatives, reduce discharges, provide warnings, and comply with the requirements of the Proposition.
How are Chemicals Listed?
California decides if a chemical is dangerous by looking at scientific research. If two groups of experts chosen by the Governor agree that a chemical can cause cancer, congenital disabilities, or other reproductive and congenital disabilities, it is listed. A chemical can also be listed if an organization that is considered trustworthy says it can cause cancer or reproductive problems. The organizations that are trusted for this are the United States Environmental Protection Agency, the National Toxicology Program, the United States Food and Drug Administration, International Agency for Research on Cancer, and National Institute for Occupational Safety and Health. If a chemical requires a warning label by the state or federal government, it can also be listed.
Responsibilities of Companies Doing Business in California
If your company has ten or more employees and operates in California or sells products there, you must follow Proposition 65 regulations. This means you cannot knowingly release chemicals into drinking water and must provide a “clear and reasonable” warning before intentionally exposing anyone to a listed chemical. You can feed this warning through labeling, signs, or newspaper notices. When you give a warning, it means you have either evaluated the
Penalties for violation of the act
Prop 65 allows for both public and private enforcement. To enforce it, plaintiffs only need to claim a violation has occurred without showing any harm or damage. Failure to comply with Prop 65 can result in penalties of up to $2,500 per day per violation. Plaintiffs can also seek injunctive relief, including product reformulation, to address the alleged violation. Private plaintiffs and their lawyers find it easy and profitable to bring Prop 65 actions, leading to aggressive litigation tactics against businesses. The cost of resolving claims has been increasing, with payments totaling over $37 million in 2019 alone, not including defense counsel fees and compliance program costs.
How to Respond to a Prop 65 Lawsuit and Compliance Strategies
If a plaintiff establishes the presence of a listed chemical, even at a low level, the burden of proof to demonstrate that an actionable exposure has not occurred shifts to the defendant’s business. Given the difficulty of meeting this burden, most Prop 65 cases are resolved through negotiated settlements. However, there may be valid reasons to prosecute. Any settlement in a private Prop 65 enforcement action, other than voluntary dismissal, must be reported to the California Attorney General.
Compliance strategies exist, including assessing whether a business is exposing individuals to any Prop 65-listed chemical and implementing a compliant warning program. Demonstrating that an exposure will produce no significant risk of cancer or no observable effect on reproduction can also achieve compliance, but this can be challenging and costly.
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Yuliya Kelmansky is an Expert Attorney who has over 15 years of practice defending a variety of cases.
