It’s the most far-reaching consumer “right to know” law in the nation. There have been myriad attempts to revise and amend this law the last couple of years, to no avail.
What is Proposition 65?
- It’s a law that requires California businesses with 10 or more employees to provide a clear and reasonable warning before knowingly and intentionally exposing individuals to chemicals known to cause cancer and/ or reproductive toxicity.
- The law only requires businesses to warn of the exposure.
- The Governor is required to keep a list of all substances known to cause cancer or birth defects or other reproductive harm. The Office of Environmental Health Hazard Assessment (OEHHA) administers the program and maintains the list of chemicals on its public website. Since first published in 1987, the list has grown to include more than 800 chemicals. OEHHA has developed threshold levels for only 300 chemicals to guide businesses in determining whether a warning is necessary. If the chemical is at or below the levels listed, the business has a “safe harbor” from providing a warning.
What are my responsibilities as a retailer?
- Provide multiple warning notices: On your products, in your store, at your registers, on your websites (yes, on your websites, for products sold in California), and on sales contracts. The warning message must be available to the individual prior to exposure.
- The warning language is simple and should read as follows: “WARNING: This product contains chemicals known to the state of California to cause cancer, birth defects or other reproductive harm.”
- Labeling all of your products in your store is NOT enough to avoid citation. We highly recommend labeling shelving or platforms that contain product; posting multiple warning signs in prominent locations within your store easily visible to your customers, including one at your registers; applying the warning to a self-inking stamp and stamp ALL price tags on ALL items in your store; stamping all sales contracts/agreements, and require customers to initial that they have read and understand the Prop 65 warning; and (if your manufacturers/reps haven’t already done so) applying the warning to all law labels of all items in your store.
Why should I go through the hassle?
- Prop 65 contains a private right of action provision (allows private citizen or organizations to bring actions against alleged violators “in the public interest”). This has been abused by litigious people and unscrupulous lawyers.
- Plaintiffs are required to submit a “Certificate of Merit” to the Attorney General demonstrating a reasonable and meritorious case for the private action; even if the AG objects, the objection may not be shared with the defendant nor publicized and the AG’s objections don’t deter frivolous lawsuits.
- According to the CA AG’s Annual Summary of Prop 65 Settlements, 2014 summary, there were 663 in-court settlements in 2014 amounting to $29,482,280—nearly double the 2013 numbers. Of the $29+ million, only 13% went to the State; 4% went directly to private enforcers as their share of total statutory civil penalties, 12% went indirectly to private enforcers in the form of “payment-in-lieu-of-penalties,” or PILPs (a form of payment not contemplated by the statute but which has nonetheless become a significant source of revenue for certain plaintiffs to fund their operations), and remarkably, 71% went directly in the pockets of plaintiffs’ attorneys. One law firm had 245 in-court settlements in 2014 totaling more than $11 million; more than $8 million of that was the firm’s attorney fees.
PLEASE BE ADVISED: These are merely suggestions on how to comply with CA Proposition 65 regulatory provisions. HFA highly recommends you consult your own legal counsel to ensure both full compliance with Prop. 65 as well as protection from legal action.
HFA also recommends you consult your furniture manufacturers and suppliers regarding their plans for securing protection for themselves and providing help to retailers regarding this matter.
Resources
- Click here to view the most up-to-date Proposition 65 list of chemicals known to the state of California to cause cancer or reproductive toxicity
- OEHHA has a table containing information on the status of chemicals currently being considered for addition to the Proposition 65.
- Full text of the Safe Drinking Water and Toxic Enforcement Act of 1986 (CA Prop 65)
- Full text of California’s “Clear and Reasonable Warnings” section 25601 of Title 27, California Code of Regulations
- Get more information online from the California Office of Health and Hazard Assessment (OEHHA) on Proposition 65
- Get more information online from the California Office of the Attorney General on Proposition 65
- Join the Cal OEHHA Proposition 65 listserv to stay informed about Proposition 65 regulatory information, changes to the list or public meetings
- Search the 60 day notices of businesses that have been served. (Type in “furniture” under “defendant” and you will search vendors/retailers in the database served a 60 day notice. This list is not comprehensive, there are more defendants than this, but it provides a temperature of the water.)
- Prop 65 Clearinghouse: Their expert staff provides an independent source of news with over 15 years experience in Prop 65
- Printable labels containting the CA Prop 65 warning for a 2″ x 4″ Avery Label 5263
