Proposition 65: Protecting Your Health

Officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986 — is a California law that requires businesses to provide clear warnings before exposing individuals to chemicals known to cause cancer, birth defects, or other reproductive harm. The law is designed to help consumers make informed decisions about the products they buy and the environments they live and work in.

There are over 900 chemicals currently listed under Proposition 65- and the list is updated at least once a year.

Proposition 65 Requirements:

Businesses are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a listed chemical. This warning can be given by a variety of means, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. Once a chemical is listed, businesses have 12 months to comply with warning requirements.

Proposition 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is listed, businesses have 20 months to comply with the discharge prohibition.

Businesses with less than 10 employees and government agencies are exempt from Proposition 65's warning requirements and prohibition on discharges into drinking water sources. Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or birth defects or other reproductive harm. Health risks are explained in more detail below.

Proposition 65 Chemical List:

The list contains a wide range of naturally occurring and synthetic chemicals that are listed for cancer or reproductive harm, or both. These chemicals include additives or ingredients in pesticides, common household products, food, drugs, dyes, or solvents. Listed chemicals may also be used in manufacturing and construction, or they may be byproducts of chemical processes, such as motor vehicle exhaust.

Proposition 65 Warning Label:

If a warning is placed on a product label or is posted or distributed in a workplace, business, or rental housing, the issuing business is aware or believes that individuals are being exposed to one or more listed chemicals.

By law, a warning must be provided for these listed chemicals, unless the level of exposure is low enough that it poses no significant risk of cancer or is significantly below levels known to cause birth defects or other reproductive harm.

Frequently Asked Questions:

  • There are four principal ways for a chemical to be added to the Proposition 65 list. A chemical can be listed if either of two independent committees of scientists and health professionals finds that the chemical has been clearly shown to cause cancer or birth defects or other reproductive harm. These two committees-the Carcinogen Identification Committee (“CIC”) and the Developmental and Reproductive Toxicant (“DART”) Identification Committee-are part of OEHHA's Science Advisory Board. The committee members are appointed by the Governor and are designated as the "State's Qualified Experts" for evaluating chemicals under Proposition 65. When determining whether a chemical should be placed on the list, the committees base their decisions on the most current scientific information available. OEHHA staff scientists compile all relevant scientific evidence on various chemicals for the committees to review. The committees also consider comments from the public before making their decisions.

    A second way for a chemical to be listed is if an organization designated as an "authoritative body" by the CIC or DART Identification Committee has identified it as causing cancer or birth defects or other reproductive harm. The following organizations have been designated as authoritative bodies: the U.S. Environmental Protection Agency, U.S. Food and Drug Administration (“U.S. FDA”), National Institute for Occupational Safety and Health, National Toxicology Program, and International Agency for Research on Cancer.

    A third way for a chemical to be listed is if an agency of the state or federal government requires that it be labeled or identified as causing cancer or birth defects or other reproductive harm. Most chemicals listed in this manner are prescription drugs that are required by the U.S. FDA to contain warnings relating to cancer or birth defects or other reproductive harm.

    A fourth way requires the listing of chemicals meeting certain scientific criteria and identified in the California Labor Code as causing cancer or birth defects or other reproductive harm. This method established the initial chemical list following voter approval of Proposition 65 in 1986 and continues to be used as a basis for listing as appropriate.

  • 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. Lawsuits have been filed by the Attorney General's Office, district attorneys, consumer advocacy groups, private citizens, and law firms. Penalties for violating Proposition 65 by failing to provide notices can be as high as $2,500 per violation per day.

  • As stated above, to guide businesses in determining whether a warning is necessary or whether discharges of a chemical into drinking water sources are prohibited, OEHHA has developed safe harbor numbers. A business has "safe harbor" from Proposition 65 warning requirements or discharge prohibitions if exposure to a chemical occurs at or below these levels. These safe harbor numbers consist of no significant risk levels for chemicals listed as causing cancer and maximum allowable dose levels for chemicals listed as causing birth defects or other reproductive harm. OEHHA has established safe harbor numbers for nearly 300 chemicals to date and continues to develop safe harbor numbers for listed chemicals.

  • Since it was passed in 1986, Proposition 65 has provided Californians with information they can use to reduce their exposures to listed chemicals that may not have been adequately controlled under other State or federal laws. This law has also increased public awareness about the adverse effects of exposures to listed chemicals. For example, Proposition 65 has resulted in greater awareness of the dangers of alcoholic beverage consumption during pregnancy. Alcohol consumption warnings are perhaps the most visible health warnings issued as a result of Proposition 65.

    Proposition 65's warning requirement has provided an incentive for manufacturers to remove listed chemicals from their products. For example, trichloroethylene, which causes cancer, is no longer used in most correction fluids; reformulated paint strippers do not contain the carcinogen methylene chloride; and nail care products no longer contain toluene, which causes birth defects or other reproductive harm. In addition, a Proposition 65 enforcement action prompted manufacturers to decrease the lead content in ceramic tableware and wineries to eliminate the use of lead-containing foil caps on wine bottles.

    Proposition 65 has also succeeded in spurring significant reductions in California of air emissions of listed chemicals, such as ethylene oxide, hexavalent chromium, and chloroform.

    Although Proposition 65 has benefited Californians, it has come at a cost for companies doing business in the state. They have incurred expenses to test products, develop alternatives to listed chemicals, reduce discharges, provide warnings, and otherwise comply with this law. Recognizing that compliance with Proposition 65 comes at a price, OEHHA is working to make the law's regulatory requirements as clear as possible and ensure that chemicals are listed in accordance with rigorous science in an open public process.

Common Litigation Issues

Prop 65 is enforced through civil actions brought by the California Attorney General, district attorneys, city attorneys, or private enforcers acting “in the public interest.” Private enforcement has become particularly prominent, often involving specialized law firms or nonprofit organizations that issue hundreds of notices annually.

  1. Failure to Provide Adequate Warnings: Businesses may face lawsuits for failing to display clear and reasonable warnings about potential chemical exposures. For example, a retailer selling ceramic mugs with lead-containing glazes might be sued for omitting proper warning labels about lead exposure risks.

  2. Presence of Listed Chemicals in Products: Claims frequently arise when products sold in California contain listed chemicals above the regulatory safe harbor levels. For instance, food manufacturers have faced lawsuits alleging that acrylamide levels in baked goods and coffee exceeded allowable limits.

  3. Testing and Methodology Disputes: Litigation often involves disputes over testing methods used to detect listed chemicals. Plaintiffs may argue that a business’s testing failed to account for specific exposure scenarios, such as cumulative exposure from daily use of a product.

  4. Discharge Violations: Allegations of prohibited chemical discharges into drinking water sources can result in significant penalties and remediation requirements. An industrial facility found to be releasing chromium-6 into groundwater might face costly enforcement actions.

Penalties and Settlements

Prop 65 allows for civil penalties of up to $2,500 per violation per day, as well as injunctive relief to correct alleged violations. Many cases settle out of court, with businesses agreeing to reformulation commitments, revised warnings, or financial payments. Settlements can include substantial attorney fees for private enforcers. For example, a dietary supplement company might agree to pay $500,000 in penalties and legal fees while reformulating its product to reduce lead content. Relevant legal defenses can reduce this amount significantly.

Additional Proposition 65 Resources

For general information on the Proposition 65 list of chemicals, you may contact OEHHA's Proposition 65 program at (916) 445-6900, or visit online. For enforcement information, contact the California Attorney General's Office at (510) 622-2160, or visit online.

Follow this link to download a pdf copy of this information.

References: OEHHA (California Office of Environmental Health Hazard Assessment). n.d. Proposition 65 [website]. https://oehha.ca.gov/proposition-65 [accessed 25 November 2024].