The law known as California Proposition 65, or prop 65, was instituted in 1986 to protect the drinking water in the State of California from being contaminated with dangerous chemicals. The law specifically targets chemicals that are known to cause cancer. 

Like most anything these days, Proposition 65 is creating something of a buzz on the internet and elsewhere as new provisions to the law are scheduled to take effect early next year. Sorting through the facts about Proposition 65 becomes increasingly difficult as interested parties from all political camps stake their positions in the media. 

Laws such as Proposition 65, though conceived with the best of intentions, still can be confusing. Regulating such a wide array of chemicals necessarily means that nearly anyone who operates a business can potentially be impacted by the law. Where do we fit into Proposition 65 might be the most sweeping question to raise?

Access to information is generally a good thing, but we live with a certain amount of information overload. Getting to the heart of what is going on with Proposition 65 can easily get lost in the mass of information. This article will provide you with the basic information on Proposition 65, and the ways Proposition 65 may affect you. 

What is Proposition 65? What does it seek to accomplish? Are there implications of Proposition 65 I should know about? These are questions we aim to sort out in this article. 

What is Proposition 65?

Enacted in November of 1986, Proposition 65 requires businesses to provide warnings to citizens and consumers about any potential exposure to chemicals that may cause cancer, birth defects, or reproductive harm. The idea was to allow Californians to make informed decisions about the products and services they buy. 

Proposition 65 is officially called the Safe Drinking Water and Toxic Enforcement Act of 1986. It was approved by voters by a 67-63 percent margin. While the law is a voter enacted law, it is not without its critics. Some claim that the law forces businesses to provide alarming warnings without explanation. The State of California maintains that all information regarding the safety of chemicals and consumer products is easily available online. 

The provisions made by Proposition 65 apply not only to consumer products. They also apply to homes and workplaces. For example, and home the is built using materials that contain materials that could cause cancer or reproductive harm must come with the advisement of the presence of these chemicals. A new home would effectively come with a warning label like any other consumer product. 

Proposition 65 also prohibits anyone from discharging into sources of drinking water any of the chemicals listed on the proposition. Since Proposition 65 was enacted in 1987, there have been over 900 chemicals listed as potentially dangerous that manufacturers and property owners must be aware of. 

What does Proposition 65 require?

First, the State of California is required to maintain a list of chemicals that fall under the control of Proposition 65. This list is maintained by the California Office of Environmental Health Hazard Assessment (OEHHA). The list is updated every year. 

Once a chemical has been listed, businesses are required to provide a clear warning before they intentionally expose anyone to a product that contains any of the listed chemicals. This can come in various forms. Product labels, signs posted in the workplace, notices sent out about rental housing, and publishing notices in the media all satisfy the warning provisions. 

The hitch about Proposition 65 is that businesses are required to inform people about the presence of these chemicals, but that is all. Just because the chemicals are present does not make the products or properties dangerous. The warnings are for consumers. It is then up to consumers to make use of this information. 

Companies must also stop discharging anything that contains the listed chemicals. They must now dispose of products that contain listed chemicals in accordance with other environmental laws. Once a chemical is listed, companies have 20 months to come into compliance. 

Does Proposition 65 contain any exemptions?

There are some exemptions to Proposition 65. Because Proposition 65 covers the entire state and all businesses in the state of California, certain exemptions were put in place with the intention of making the law feasible.    

The following exemptions apply to Proposition 65:

• Governmental agencies and public water utilities
• Businesses with nine or fewer employees
• Exposure does not pose a significant risk of cancer.
• Exposure does not produce any observable reproductive effect at 1000 times the level that is regulated
• Exposure to the chemicals listed naturally occur in foods
• Any discharge that does not result in a significant amount of the listed chemical entering a drinking water source

Some of thee exemptions are a reflection of practical considerations. For example, some foods contain chemicals that are linked to cancer and reproductive problems. These are simply an effect of nature and cannot be regulated. Other exemptions are in place to alleviate the burden on small businesses. 

In short, the State of California has instituted what is called safe harbor levels regarding the chemicals listed under Proposition 65. A business has a safe harbor from Proposition 65 warning requirements if exposure is under the prescribed levels. This means the levels of chemicals used by these businesses pose no significant risk.  

How is Proposition 65 enforced?

Enforcement of Proposition 65 is at the discretion of the California Attorney General’s office. Cases that may involve violations of Proposition 65 are brought by individuals and groups as a citizen complaint. 

The law requires that anyone can sue in the public interest to enforce prop 65. They must notify the Attorney General. 

There is an online process that allows for an electronic filing of complaints. The state of California recently added a 60-day filing form available online. 

What types of chemicals are on the Proposition 65 list?

The state of California provides an online list of every chemical regulated by Proposition 65. This list is long, and it would be a waste of space to try to list all of them in this article. The online list also provides the date when the chemical was added to the list. 

Many of these chemicals are specific to certain industries. Most industrial companies are aware of what is in their processing materials. If there is any doubt, you will find everything on this list. 

How chemicals are added to the Proposition 65 list?

New chemicals are added to the list based on a system of evaluation from two primary agencies. The Carcinogen Identification Committee (CIC) and the Developmental and Reproductive Toxicant Identification These two agencies meet twice a year to evaluate chemicals in question so as to identify them as cause cancer, birth defects, or reproductive harm. 

The criteria that use to make these determinations come from the most recent scientific findings from what the state designates as “authoritative bodies,” that is, recognized scientific research bodies that follow internationally recognized protocols for scientific analysis. 

These authoritative bodies include the US Environmental Protection Agency, US Food and Drug Administration (US FDA), National Institute for Occupational Safety and Health, the National Toxicology Program of the US Department of Health and Human Services, and the World Health Organization’s International Agency for Research on Cancer (IARC).

Proposition 65 FAQS

• What if you bought a product that carries a Proposition 65 warning? 

You can begin by requesting more information from the business you purchased the product or the manufacturer. Unfortunately, the state does not keep track of every product that carries a Prop 65 label. You can also reference the list of controlled chemicals from the site provided above. 

• Does a Proposition 65 warning label mean a product is unsafe?

The purpose of Prop 65 is to provide consumers with information regarding the chemical components of products and services. It is not designed to be a product safety guide. First, consult the list of chemicals controlled by the law. Then contact the manufacturer to find out more about the product itself. 

There are a number of regulatory agencies that can provide detailed information about specific chemicals and product safety. The California Department of Public Health issues recalls of food products found to be unsafe. The federal U.S. Food and Drug Administration regulates food, drug, cosmetic and medical device products. Other types of consumer products, including toys, jewelry, personal care products, and other non-food items, are regulated by the federal Consumer Product Safety Commission, which also may issue recalls for products found to be unsafe. Finally, the California Air Resources Board may ban products that harm the air we breathe.

• What if I rent from a landlord who posts Proposition 65 warnings? 

This is another case in which you should ask for more information. Property owners are required to post Prop 65 warning labels for a variety of reasons. The best thing to do is to ask your landlord why the label is posted. There is an online fact sheet for renters that provides details for why property owners are required to post Prop 65 warnings. 

• Is my small business regulated by Proposition 65?

Small businesses are exempt from Proposition 65. Small businesses with fewer than 10 employees, governmental agencies, and public water systems are exempt from the warning requirement and discharge prohibition of Proposition 65.

• How do I know if my business is regulated by Proposition 65?

You need to be aware of your own business and the types of materials that go into production. The list provided above will help you determine if anything you are using falls under the regulations of Prop 65. 

There are also “safe harbor” levels that fall under the control of Proposition 65. This means that if you are using regulated chemicals but at concentrations that fall below a certain level, you will not be required to provide a Prop 65 warning label. Safe harbor regulations can be found online. 

Businesses do carry the burden of proving a warning is not required. However, businesses are discouraged from putting up Prop 65 warnings if the warning is not warranted. The state counsels business owners to work with a qualified professional to determine the levels of regulated chemicals in their production processes. 

The State of California provides a detailed online fact sheet for anyone who thinks they may be covered and regulated by Proposition 65. 

Wrapping things up

The 1986 California State Law known as Proposition 65 was enacted to provide reasonable warnings to consumers and others about the types of chemicals that may be present in consumer products and in buildings. The law is designed to provide information, not to regulate the use of these chemicals.  

The safety of individual products and services is regulated by other agencies. This guide contains links to help you follow up with safety concerns. But it is important to remember that a Proposition 65 warning sign does not necessarily indicate that a product or service is unsafe. 

Proposition 65 provides a literal list of every chemical that falls under its purview. Any chemical that is known to cause cancer, birth defects, or reproductive problems is named under Proposition 65. This means that if any of the listed chemicals are present in a product, in the manufacture of a product, or in building materials, businesses are required to post a warning label or sign that informs people that these chemicals are present. 

While the law can be difficult to manage, the State of California provides copious information on how to comply with the law. What is more, small businesses are largely exempt from Prop 65.  There is a full list of every chemical regulated by Proposition 65, and there are FAQs provided in downloadable PDFs. 

Proposition 65 covers so many things, it can be hard to determine how you fit into things. The State of California has a phone number and website to help answer specific questions and concerns. Contact the California Attorney General's Office at (510) 622-2160, or visit https://oag.ca.gov/prop65. There is also information online that specifically details the provisions of Proposition 65.