Ready or Not New Prop 65 Regs Become Effective August 30, 2018

Originally Published By:  Nijman•Franzetti LLP

Newly amended clear and reasonable warning regulations in California’s Prop 65 take effect on August 30, 2018. The new regulations require consumers receive more detailed information about the hazards of over 900 listed chemicals including information about State resources, new warning notification requirements and chemical-specific warnings.

Enacted in 1986, Prop 65 requires the State to publish a list of chemicals known to cause cancer or reproductive toxicity and for businesses with 10 or more employees to provide warnings when they knowingly or intentionally cause significant exposures to listed chemicals. Any company in the supply chain for a product sold in California must comply with Prop 65, regardless of whether they operate in California. Unfortunately it continues to be the case that many companies are not aware of the law’s broad reach and potential for liability for suppliers of raw materials, manufacturers, distributors and retailers.

Prop 65 authorizes penalties up to $2,500 per day per violation. In addition, private plaintiffs can sue to enforce Prop 65 and can recover their attorneys’ fees as well as potentially a percentage of the penalties imposed. The California Attorney General reported 688 Prop 65 settlements in 2017 totaling more than $50M both in settlement payments and attorneys’ fees.

If your business includes the California market, now is the time to finalize a strategy to comply with Prop 65. California’s Office of Environmental Health Hazard Assessment (OEHHA) administers Prop 65 and its Prop 65 website is a great resource for business and perhaps a good place to start.