the method of warning depends upon
the nature of the item containing the
chemical. Examples include, labeling
a consumer product, posting signs at
the workplace, distributing notices at a
rental housing complex or publishing
notices in a newspaper. Businesses are
not required to report what warnings
they have issued and why. There is
concern that the citizens of California are
habituated and de-sensitized to Prop 65
warnings, essentially not paying attention
at all to the warnings, some of which they
see printed in newspapers, in their utility
bills and at grocery stores.
consumer notification provisions can
run as high as $2,500 per violation per
day. In assessing the amount of a civil
penalty, courts must consider seven
factors focusing on the violations and
the level of culpability of the offender.
There are some exemptions to Prop
65, e.g., businesses with less than 10
employees need not comply with
either the discharge requirements or
the notification requirements. Also,
there are defenses concerning "safe
harbors" and issues of bioavailability.
OEHHA has adopted safe harbor
exposure levels for some chemicals, but
not for the vast majority. If a business
proves that its product exposes average
users to a chemical at a level below
that established by OEHHA, then the
exposure from the product is within
the safe harbor level and the business
is exempt from the requirements of
Prop 65. The burden is on the business
to establish that an exposure falls
within the safe harbor level. For those
chemicals for which OEHHA has not
adopted safe harbor levels, the business
essentially must establish safe harbor
numbers. Of course, the business should
expect to face the argument that there are
no safe harbor levels for the chemicals.
The presentation of this type of scientific
evidence can be very expensive.
by three types of entities the California
Attorney General's Office; district
attorneys and city attorneys for cities
with populations exceeding 750,000
people (Los Angeles, San Diego, San
Francisco and San Jose are the only four
California cities currently satisfying
this criteria); and private citizens. The
first two entities are known as "public
enforcers," while the private citizens are
referred to as "private enforcers." Any
individual or entity claiming to be acting
in the public interest may seek to enforce
Prop 65 by filing a lawsuit against a
business alleged to be in violation of
this law. By far the vast majority of
lawsuits are filed by the last category.
It is believed that many of the private
enforcers are not driven by altruism,
but by financial gain, resulting in the
private enforcers frequently being called
"Bounty Hunters."
business with "60-day notice" before
filing suit. The suit can be filed in any
superior court. The 60-day notice is
designed to allow the business time to
investigate the alleged violation and
take corrective actions. Government
prosecutors are not required to provide
60-day notices. Private enforcers must
provide copies of 60-day notices to all
of the previously mentioned government
enforcers and can only file suit if the
government enforcers decide not to
do so. Seventy-five percent of all civil
penalty settlements are paid to the state,
while the other 25% are kept by the
private enforcers, who also are allowed to
collect their billed fees. The California
Attorney General must be notified of
each proposed settlement so that it has
time to object. All settlements are posted
on the Attorney General's website,
so settlements cannot be private/
confidential.
amendments to the Prop 65 warning
requirements which include new
reasonable warning. Businesses warning
about exposure to a Prop 65 listed
chemical may use either the current or
new version of warning until the new
requirements take effect on August 30,
2018. The changes include the following:
size as other consumer information
presented on packaging and may not
be smaller than 6-point type;
identify at least one toxic chemical;
symbol that is an equilateral triangle
with an exclamation point. The
triangle must have a bold outline. If
the printing of the label that includes
the warning is in color, the triangle
must also be yellow. This symbol
is followed by the word WARNING
in capital letters and bold print the
same size as the triangle symbol.
state or county that has a statute like
California's Prop 65. The fact that a
product bears a Prop 65 warning does
not on its face render the product
unsafe. Prop 65 is more about a "right
to know" than a pure product safety
law. However, many businesses are
concerned that consumers may interpret
the warnings to mean that products
are unsafe. This concern often results
in businesses deciding to reformulate
products instead of warning. Other
businesses make the decision to stop
selling products in California. Prop
65 has been a very expensive statute
for businesses throughout the United
States and the world. Expenses incurred
include providing and installing
warning information, testing products,
research and development of alternative
chemicals to use in the place of listed
chemical and defending litigation. An
attorney with experience with Prop 65
can help businesses minimize these
expenses by avoiding litigation, and if
litigation is not avoided, by resolving
cases quickly.