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California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986.  This act is limited to the State of California and requires businesses to provide warnings to California residents about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm.

How is Proposition 65 implemented?  Proposition 65 requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.  The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program. This list, which must be updated at least once a year, has grown to include approximately 900 chemicals since it was first published in 1987.

What is a Proposition 65 Warning? A warning is placed on a product label or inserted into the products packaging if the business is aware or believes that it is exposing individuals to one or more of California’s listed chemicals. By California law, a warning must be given for listed chemicals unless the exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.

How is Proposition 65 enforced in California? The California Attorney General’s Office enforces Proposition 65.   Any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65.  In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law.

What is a Proposition 65 60-day Notice? A 60-day Notice of Violation is a legal document served by a private party to a manufacturer, alleging violations of Proposition 65.  The 60-day notice must contain:

A 60-day Notice must contain certain information the following:

  • Proposition 65 statute
  • Adequate information with respect to the alleged violation
  • Identify the private individual
  • Period of the violation
  • Listed chemicals hazards present
  • Route of exposure (inhalation, ingestion, dermal contract)

During this period of time, the California Attorney General’s office reviews the allegations and may take over the proceedings. At the 60-day deadline, if the Attorney General’s office chooses not to take action, a private party is permitted to take action against the manufacturer.

What is a Certificate of Merit? The 60-day notice shall include a certificate of merit. The certificate of merit is required to be signed by the attorney for the private party, or by the private party, if the noticing party is not represented by an attorney. It must provide that the private party “has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.” In addition, supporting documentation sufficient to establish the basis of the certificate of merit (e.g., test and exposure results) must be attached to the certificate of merit that is sent to the Attorney General.

What are the penalties for violating Proposition 65?  Penalties for violating Proposition 65 by failing to provide warnings can be as high as $2,500 per violation per day!

Take the following fact pattern:

ABC wholesale corporation imports a container of 50,000 toy trucks into the United States.  The toy trucks are distributed throughout the fifty (50) states.  5,000 toy trucks make there way into XYZ department stores. John Doe purchases one of these toy trucks.  Before letting his 5 year old son Barry play with the toy he tests it for lead.  The test he performs results show a high level of lead content, beyond the permitted threshold. Further, it can be argued that exposure through dermal contact would result from playing with the truck. Unfortunately, the toy truck packaging did not bear a warning label as required by California law as to such exposure.  Both ABC wholesale and XYZ department store are served with a 60-day notice alleging prop 65 violations. 

What now? Do not ignore the notice, contact an attorney immediately; time is of the essence!

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with an attorney familiar with prop 65 compliance at (800) 549-5099.  We can provide insight to both enforcing and defending prop 65 and come to an amicable resolution.  To chat with us, click the bottom right corner tab of our homepage.

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