Selling Products in CA – A New Proposition 65? Keeping Consumers Safe and Businesses On Their Toes
By: Talin Haroutunian, Esq.
Business Counsel Group, P.C. · www.businesscounselgroup.com
September 3, 2015
California Proposition 65 (“Prop 65”) is a law that regulates the sale of consumer products in California. The regulation lists chemicals known to cause cancer and/or reproductive toxicity (birth defects), and currently has over 800 chemicals on the list, including lead—a chemical very commonly found in, among other things, apparel and jewelry. Prop 65 goes beyond apparel and jewelry, and affects consumer products including toys, food and beverage packaging, personal care products, and household products.
Prop 65 requires businesses to give the public “adequate notice” of the existence of the relevant chemical in the products by placing warning labels on the products (assuming trace amounts of the known chemical is found in the products in an amount greater than the safe harbor limit allowed under the regulation). Granted, a warning like that isn’t exactly ideal when trying to sell a product, but given the fact that Prop 65 concerns the health and safety of all consumers, an argument against its existence isn’t very compelling.
But the issue business owners have with Prop 65 isn’t what it’s intended to protect, but rather the manner in which it goes about doing it. Many argue that the regulation leaves very little (if any) room for error, and the tiniest of errors can be very costly. Failure to comply with Prop 65 notice requirements can result in penalties of up to $2,500 per day. A penalty of tens of thousands of dollars isn’t uncommon, and even less uncommon is receipt of a notice of violation from a bounty-hunting firm or organization, looking for an easy pay day.
The Center for Environmental Health (“CEH”) (http://www.ceh.org/), an organization that polices businesses, and brings lawsuits against non-compliant companies, is now leading the charge for an amendment to the regulation, calling for stricter daily safe harbor limits, arguing that the current limits aren’t really safe.
If the amendment passes (California’s Office of Environmental Health Hazard Assessment is holding a hearing on CEH’s petition on October 9, 2015), many businesses will have to re-evaluate the way they’re doing business in California—a potentially costly undertaking.
Business Counsel Group is ready to answer any questions you may have regarding Proposition 65, including how to mitigate possible risk. You may reach Talin via email at Talin.Haroutunian@businesscounselgroup.com.
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