What is Proposition 65?
Proposition 65 is born in California, but the rule is followed in the many US States.
Proposition 65 requires businesses to provide warnings to people about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. These chemicals can be in the products that people purchase, in their homes or workplaces, or that are released into the environment. By requiring that this information be provided, Proposition 65 enables people to make informed decisions about their exposures to these chemicals.
Proposition 65 requires that the Competent Authority publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. This list, which must be updated at least once a year, has grown to include approximately 900 chemicals since it was first published in 1987.
Proposition 65 derives from a California State law dated 1986 (HEALTH AND SAFETY CODE, DIVISION 20, CHAPTER 6.6, 25249.5 – 25249.14)
The text of the law focuses on two points:
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- the first on direct damage to drinking water
- the second on direct damage to the people.
25249.5 – Prohibition On Contaminating Drinking Water With Chemicals Known to Cause Cancer or Reproductive Toxicity. No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into a land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9
25249.6 – Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.
But, what is a “clear and reasonable warning”?
The regulation distinguishes two cases: the case in which the message comes affixed directly to the product and the case in which it is affixed in a delimited area. In the latter, it falls both the case of environmental exposure (in this case we speak above all of the occupational exposure) and on the shelf for the consumer (and is therefore again an exposure linked to the consumption of a product). The act requires the affixing of a label or a sign with the words “WARNING” in bold and with a period black exclamation mark on a yellow field inscribed in a black triangle; alternatively, it can be black and white.
The following sentences are allowed:
- For products that contain substances that are only carcinogenic: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov“
- For products that contain substances that are only toxic for reproduction: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov“
- For products that contain substances that are only carcinogenic or only toxic for reproduction: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov“
- For products that contain substances that are carcinogenic and toxic for reproduction: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to P65Warnings.ca.gov“
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, and 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 (25249.7).