Prop 65: Uncertainty For Business and Consumers

Effective August 30, 2018, California’s new Prop 65 regulations require consumers receive more detailed information about possible exposure to over 900 listed chemicals. The recently amended “clear and reasonable” warning requirements expand consumer notifications adding the identification of specific chemicals as well as warnings applicable to internet and catalog sales, among other new regulatory obligations. Implementation of the increasingly complex, broad based Prop 65 regulations is a never ending challenge for business given the changing nature of goods received from suppliers, new products routinely coming online and differing legal obligations depending upon the nature and type of exposure. More troubling is the reality that Prop 65 warnings have become so common place that individuals pay little attention to legally required labels and signs.

Prop 65 now applies to over 900 listed chemicals–as we have seen from recent news, even your coffee may come with a Prop 65 warning. Moreover, businesses wary of shakedown by legal bounty hunters post warnings ubiquitously even when products may not be hazardous at all.

In 2017, 700 Prop 65 violations were identified resulting in $25M in penalties and fees–$20M was paid to bounty hunters and their counsel. Between 2000-2017, $300m in penalties and fees have been collected for Prop 65 violations with approximately 15% going to the State and 85% provided to private plaintiffs.

Despite recent amendments, regulators and the  business community need to take a hard look at whether or not Prop 65 really is meeting the original intent of the citizen-led initiative to protect and warn consumers about serious chemical exposures at home, work and in the environment. Is there sufficient focus on science-based criteria for the identification of chemicals? How can we better incorporate risk-based assumptions into warning and labeling requirements? Can we expand exemptions for products with trace amounts of Prop 65 chemicals?

For many, it is unclear if the new Prop 65 requirements meet expectations or simply exacerbate the regulatory burden on business. It seems increasingly evident that the only parties truly benefitting from Prop 65 are the private plaintiffs and their lawyers.