California Proposition 65 Toxic Enforcement Act – Consumer Guide & FAQ For Residents in States other than California

What is California Prop 65?

  • CA Proposition 65, a ballot initiative passed in the state of California twenty-five years ago, is a law unique to California. It requires all sorts of businesses and establishments to post warning signs because the food, drinks, paint on the walls, air, or products they sell contain any one of 935 chemicals that may be on a list that California has determined cause cancer or reproductive harm. The warning signs and labels are meant to warn consumers of possible exposure before they frequent an establishment or purchase a product.

  • As a result, Californians regularly and routinely see warning signs and labels on thousands of buildings, restaurants, and common products – including household, outdoor, hobby, leisure, business supplies, and even gas, foods and wines. Due to the nearly 1000 chemicals included on the list, most places and products are at risk of containing one or more of the target chemicals. This has resulted in what some call a “Warning-Information-Overload”.

Why does the product I’ve bought contain a Warning?

  • In the USA, the same distribution channels serve all fifty States. From a practical standpoint, due to the nature of how businesses distribute their products across the nation, they cannot predict which exact product may end up being sold to someone in California, so they place warnings on all of their products or risk being targeted by specialized professional plaintiffs and their attorneys for devastating lawsuits. Therefore, consumer products in the other 49 States may also display such warning labels. No doubt, consumers see Prop 65 warnings at retail, mail order or internet sales of products regardless of what State they’re in.

How does CA Prop 65 differ from federal regulations under the Consumer Product Safety Improvement Act (CPSIA)?

  • Unlike the nationally followed CPSIA regulations, Prop 65 does not ban the presence of the listed chemicals in products, but does require a warning label or sign if the product may possibly be sold to a consumer in California.

  • Prop 65 regulation is based upon warning about ‘exposure’ to chemicals. Exposure is determined by very many factors, such as containment, level of presence, method of absorption, probable frequency of use, chemical level in relation to how a consumer comes in contact with the substance and the duration of contact. This is a nebulous and complex approach, fraught with random unproven assumptions – and it is prohibitively expensive for businesses to prove the negative, the absence of risk!

  • Prop 65 gives so-called “private citizen enforcers” (often referred to as bounty hunters) the power to enforce the law. Generally lawyers and their ‘repeat use plaintiff litigants’, having a propensity to “work the system”, are the actual ‘citizen enforcers’, and they get a cut of every penalty businesses are forced to pay plus enormous sums of attorney fees and costs. It’s a very lucrative field for the ‘private enforcers’. Businesses often opt to put Prop 65 warnings onto any product remotely probable for litigation as a precaution against lawsuits, and because a trace amount of one of the 935 listed chemicals may be present in some component of the product (e.g. the stop point of a zipper, or a hook). No other law gives ‘citizen enforcers’ such authority.

Does CA Prop 65 apply to all products?

  • Yes, Prop 65 applies to all consumer products, both children’s and adult products, sold in California.

What is the purpose of a Proposition 65 warning?

  • The logic of a Proposition 65 Warning is to notify California consumers of a potential risk, enabling them to decide on their own if they want to purchase or use the product. A Proposition 65 warning does not necessarily mean a product is in violation of any product-safety standard or requirement in the rest of the nation or world.

What chemicals are identified by California?

  • In 2015, over 935 chemicals are on California’s official list.

  • However, research shows California hasn’t seen any decline in health problems despite the extraordinary efforts in warning consumers of all these chemicals.

Is the product safe?

  • Even the Regulatory Office (OEHHA) for Proposition 65 states on its website that, just because there is a Prop 65 required warning on a product, that does not necessarily mean a product is in violation of any product-safety standards or requirements. All Exxel and American Rec products meet federal regulatory standards, and product safety is a core principle of our organization.

What about similar products with no warning labels?

  • You can’t assume that products without warning labels are chemical free or exempt from the Prop 65 warning requirement. It’s possible that the product isn’t sold in California – the only state that requires this warning label. And some companies only put the labels on products that will be sold in California, so you won’t see them unless you buy the product there. Finally, older products sold prior to when the labeling requirement went into effect, may also contain the listed chemical(s).

Where can I get more information?