Proposition 65 and You

As you may already be aware, new rules under Proposition 65 take effect on August 30, 2018 that significantly change the warnings that must be displayed to retail customers on many products sold in California.  If you have not done so already, we strongly recommend that you evaluate and, if necessary, change the warnings you’re currently providing to your customers.  Failure to comply could expose you to monetary risk and attorney’s fees.

In short, Prop 65 prohibits retailers and manufacturers from “knowingly and intentionally” exposing California consumers to chemicals “known by the State to cause cancer or reproductive toxicity”, regardless of where the product was made, unless a “clear and reasonable warning” is provided.  The state provides example warnings that are “clear and reasonable” under the new regulations, meaning that, although a retailer or manufacturer may create their own warning, use of the “safe harbor” examples provided by the state satisfies the new requirements.  Alcohol beverage and cannabis products have their own, particular warnings. 

As noted, the new rules apply to producers, importers, and distributors and certain retailers may also be required to provide warning notices.  In particular, alcohol retailers with more than 9 employees must post the new alcohol warnings, including notices about BPA (which is found in some synthetic corks).  So, retailers, restaurants, bars, hotels, DTC sales, tasting rooms, and even internet commerce sites selling to a buyer with a California address should all evaluate whether they’re required to label.

Significantly, Prop 65 provides a private right of action.  This means that a private citizen may serve a notice of violation, with penalties of up to $2,500 per day and the plaintiff’s lawyer being able to recover attorney’s fees.  The private right of action significantly increases the chances of being caught for non-compliance.

If you have not yet educated yourself about Proposition 65’s requirements and how they might affect you and your business, please feel free to reach out to your GVM lawyer for more information.

This information is only a summary and provides only general information about Proposition 65. It does not constitute legal advice, and you may not and should not rely on it.

By: Marc Hauser