California Proposition 65 requires companies selling products in California to comply with its warning requirements. Violations related to Prop 65 warnings may expose your business to lawsuits. Accordingly, the most cost-effective approach is to take proactive steps to address compliance with this law.
Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California law that requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. The California Proposition 65 list is updated every year. Therefore, it is crucial to remain informed on the latest added Prop.65 substances such as 1-Bromo-3-Chloropropane, Butyl Glycidyl Ether, and Glycidyl Methacrylate.
The Office of Environmental Health Hazard Assessment (OEHHA), part of the California Environmental Protection Agency (CalEPA), administers the Prop 65 regulation. With this intention, OEHHA keeps a list of recognized carcinogens and reproductive toxins. The agency updates the list at least once a year by adding new chemicals. The list contains more than 900 substances, according to the update of February 25, 2022. Notably, once the agency adds a new chemical to the list, it takes 12 months before the P65Warnings requirements apply.
Hazardous chemicals, known to contribute to cancer, birth defects, or reproductive harm, are used in many everyday consumer products. Think of adhesives, painting, solvent, some plastics, some drugs… even coffee! All of these products may contain hazardous substances.
Here are some examples of substances in the Prop 65 list:
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Many Prop 65 substances are used in electrical and electronic equipment and other everyday products. Compounds of cadmium, cobalt, mercury, nickel, lead or hexavalent chromium are examples of these types of substances.
According to an analysis of the 60-day notices for violation of California P65Warnings obligations in 2020, consumer products from the following industries are at the highest risk of legal actions:
To comply with the Proposition 65, you must follow these steps:
This regulation applies to products sold, imported, or distributed in the state of California.
2. Due your due diligence
Determine if your products contain any of the chemicals listed under Prop. 65
Interestingly, there are three types of exposures that require a warning:
If your consumer products contain listed chemicals, you need to evaluate the level of exposure to determine if it is significant enough to trigger the warning requirement.
If the exposure is significant, you must provide a clear and reasonable warning to California consumers. This so-called safe harbor warning can be given on:
If any substance in the Prop 65 list is contained, or likely to be present in your products, workplace, and or a public area, such as a hotel, then a specific warning is requested.
Different warning methods are available, like:
The Prop 65 warning can take various forms depending on the risks of exposure caused by the substances present in a product, which are either:
Prop65 Short-form Warning Label: A short-form warning label is possible under the following conditions:
This rule applies from January 1st, 2025, with a grace period of 3 years until January 1st, 2028, per the approved amendment of Article 6 to Chapter 1 of Division 4 of Title 27 of the California Code of Regulations.
You must maintain records that demonstrate your compliance with Prop. 65, including:
Companies can implement several approaches to avoid penalties related to Prop 65 violations, such as:
It is recommended to verify with your supply chain whether any chemical in the Prop 65 list is present in your product, especially for parts that can be in direct contact with the consumer under normal conditions of use, such as:
A risk assessment can be necessary, to confirm the substance(s) on the Prop 65 list that may have to be declared.
If you sell a product without a safe harbor warning that does contain a chemical in the Prop 65 list, then you expose your company to lawsuits.
Some law firms are specialized in this type of lawsuit, and major distributors, such as Amazon, Costco, Pharmacy, Target, and Walmart have had to face legal proceedings.
As a result, the Prop 65 settlement payments go up over the years, to reach a total of tens of millions of dollars.
The image of non-compliant companies can also be severely damaged.
Other requirements may specifically apply to your products, like California RoHS for electrical and electronic household equipment.
Not really. Prop 65 is a warning/exposure law (and a drinking-water discharge law), not a government-issued “certification” program. Compliance is usually demonstrated through supply-chain documentation and/or exposure assessment, and—when needed—testing and toxicology support.
Prop 65 generally applies to businesses with 10+ employees doing business in California. It can still affect out-of-state companies if their products are sold into California (including online sales).
Prop 65 warnings are triggered by significant exposures, not simply “a chemical exists somewhere in the product.” If exposures are below “safe harbor” levels (when available), a warning may not be required.
OEHHA publishes “safe harbor” levels for many chemicals: NSRLs (cancer) and MADLs (reproductive toxicity). If a chemical has no safe harbor level, companies typically need a defensible approach to evaluate exposure and risk (often involving toxicology expertise).
Penalties can be as high as $2,500 per violation per day, and Prop 65 is commonly enforced through private actions in addition to public enforcement. Many cases start with a 60-day notice process.
Short-form warnings exist, but California has moved to make them more informative (including requiring at least one chemical name under certain updated rules and timelines). Make sure your label strategy matches the latest OEHHA “clear and reasonable warning” requirements.
This approach offers the best money value and avoids numerous and expensive chemical analyses.
Enviropass can assist you in both:
You may have test reports and certificates. Are they applicable to the materials in direct contact with the final users or installers?
Our lab network can help you test your parts against the most at-risk California Proposition Substances.
