Lawsuits against businesses for failure to comply with California’s “Prop 65” are on the rise. H&C’s Litigation group has seen a marked increase in these lawsuits recently and, based on changes in the law that will take effect in 2018, we recommend that all manufacturers, importers, distributors and resellers of products that could fall within the provisions of Prop 65 take steps to ensure compliance.
The Law: California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as “Prop 65” was intended to address the public’s growing concerns about exposure to toxic chemicals. At its core, Prop 65 requires any person “in the course of doing business” to give a “clear and reasonable” warning to consumers in California if their product contains significant amounts of certain chemicals known to cause cancer or birth defects or other reproductive harm. The list of chemicals for which consumer warnings are required has ballooned since 1986, and now includes approximately 950 chemicals. That complete list can be accessed here.
Anyone may sue to enforce the Act, provided that written notice is given to the alleged violator and public prosecutors and the public prosecutors fail to commence an action within 60 days. Failure to provide the required warning, even inadvertent failure, can result in significant liability. According to one published source, Prop 65 settlements in 2014 alone totaled 29 million dollars; with changes in the law and an increasing number of professional litigants focusing on the law, that number is expected to rise.
Changes in 2018: California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has adopted regulations specifying the form and content of consumer warnings that are deemed by the OEHHA to be clear and reasonable and therefore compliant with the Act (the “Safe Harbor Warning Methods”). Amendments to the regulations, passed in August 2016, become mandatory for all products manufactured after August 2018. However, to avoid multiple compliance standards, the regulations allow businesses to use the new rules immediately for all products whether made before or after the 2018 mandatory compliance date.
The new regulations are available here. Given the large number of chemicals for which warnings are now required, the growing number of private enforcement actions, and the recent amendment of OEHHA’s regulations concerning Safe Harbor Warning Methods, now is a great time to evaluate (or re-evaluate) whether your products are Prop 65 compliant. An H&C attorney familiar with the intricacies of Prop 65 can provide advice and counsel regarding your business’ compliance with the new regulations in a manner that does not incur liability for you and can help evaluate your business practices in an effort to minimize your exposure to future Prop 65 litigation.