Everything you need to know about Prop 65 to ensure you're in compliance
Have you purchased a product that included a Proposition 65 warning label? It’s in response to California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65 or Prop 65.
Not from California? Don’t click away just yet, it could cost you.
What is Prop 65?
According to California’s Proposition 65 Warnings website:
“Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm.”
Ultimately, it’s intended to help California residents make informed decisions about their exposure to these chemicals. However, the warning labels are showing up on products nationwide. That’s because some companies have opted to include the warning label on all qualifying products to ensure compliance, even if they don’t expect they’ll be used or sold in California.
For California business owners, the signs are not exclusive to products. Proposition 65 warning signs can be found posted in areas where people may be exposed to harmful chemicals such as parking structures, smoking areas and gas stations.
What if my product is found in California without a Prop 65 warning label?
Companies found not in compliance receive a $2,500 fine per violation per day that can quickly add up. In 2017, California recorded $25.7 million in settlements related to Prop 65, down from $30.1 million in 2016.
With over 950 chemicals on the Prop 65 list, from aloe vera and coconut oil to arsenic and lead, manufacturers own the sole responsibility of identifying which of their products qualify and require warning labels.
To help you get a better understanding of how best to comply with the Proposition 65 warning label requirements, we’ve compiled our answers to the most commonly asked questions we get around the subject.
Proposition 65 Regulation Frequently Asked Questions
Q. What is the Proposition 65 regulation?
A. Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide warnings to Californians about significant exposures to chemicals known to the state of California to cause cancer, birth defects or other reproductive harm.
Q. Where is this regulation currently enforced?
A. Currently, this regulation is only enforced in California. Businesses with 10 or more employees that fail to comply with the regulation may be fined $2,500 per violation per day.
Q. Do I need Prop 65 warning labels on my products?
A. First, you should check to see if chemicals in the product, or created through the use of the product, are on the Proposition 65 list.
Next, you should determine whether the manufacture or use of the product is likely to expose individuals to listed chemicals. If the product causes consumer exposure to a listed chemical, you should determine whether the Office of Environmental Health Hazard Assessment has identified a regulatory safe harbor level for the chemical. The safe harbor levels, or levels of exposure that are exempt from the warning requirement, can be found here. If you can show that the exposure you cause is below the regulatory safe harbor level, you need not provide a warning.
It is strongly recommended that any business that uses a listed chemical in its products but believes the level of exposure does not exceed the applicable threshold(s), consult with a scientist who has experience in risk assessment and Proposition 65.
Q. When am I required to use short form vs long form warning labels?
A. Section 25603, subsections (a) and (b) provide options for safe harbor warning content for consumer products. Subsection (a) is the standard warning content, while subsection (b) allows a business to use the truncated short-form warning content on a product label. A business may use either the standard or short-form warning content on a “label” for a consumer product exposure [Sections 25602, subsections (a)(3)&(4)]. The short-form warning is not a warning method applicable to a “sign” [Section 25602(a)(1)].
Q. Can a warning be provided via a Package Insert or Instruction Manual?
A. A standalone warning in a package insert or with instructions would not likely meet the requirements for a safe harbor consumer product exposure under Section 25602. A business may choose to use short on-product warnings labels and provide additional warnings in a package insert or instruction manual for occupational exposure, especially when the package insert or instructions are in multiple languages, and warnings will need to be provided in the same languages as well. The warning may be on one line for each language or two lines if space is limited.
Q. What font size label am I required to use for labeling my Prop 65 products?
A. Requirements for type size: Text of the warning must be the same size as other consumer information presented on the package and in any case may not be smaller than 6-point type.
Q. Can I remove the Prop 65 label from my products?
A. If a product is found in California, no matter how it got there (e.g. a no-charge sample or a gift), it is likely covered by California’s laws. A potential exception would be if you can guarantee that a labeled product will not go to California under any reasonably foreseeable circumstances. For instance, if an electronic device is labeled with a warning sticker and is then shipped to a country and matched with a plug whose physical configuration does not align with an electrical outlet found in California, it may be reasonable to assume that the device will not subsequently ship to California. In this case, it may be acceptable to remove the warning label.
Q. Why should I use Brady labels for the Prop 65 requirement?
A. Brady is the top trusted provider of labels and product identification needs. With the Proposition 65 regulation, it becomes more important for the labels that are placed on the products hold up to the tough conditions in order to warn the end user of potential health concerns.
Note: This document should be used as general guidance only. For more information and clarification on the regulation, please go to www.p65warnings.ca.gov. To request a Prop 65 certification for a Brady product, please complete and submit the Product Certification Request Form.
Brady Corporation is not a law firm and the materials available at this web site are for informational purposes only. The information presented on this website may not reflect the most current legal developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. You should contact your attorney to obtain advice with respect to any particular issue or problem.