Author: Cassie Scott
Many ATA members must comply with the California Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65, by Aug. 30 to avoid fines and penalties.
To learn Proposition 65’s specifics, we spoke to Jonathan M. Menuez, a lawyer with Sutter O’Connell Attorneys in Ohio and Tennessee. Menuez specializes in archery, recreation and sporting-goods liability, and knows Proposition 65’s requirements and how they affect ATA members.
What is Proposition 65?
Proposition 65 protects Californians and their drinking water from chemicals that could cause cancer, birth defects and other reproductive harm. The act informs residents of their exposure to products containing harmful chemicals to guide their buying decisions.
Therefore, any business selling products in California or to Californians must include a warning label if the products contain one or more of about 900 potentially harmful chemicals. The California Office of Environmental Health Hazard Assessment maintains the list, which is published annually by the governor’s office. View the Proposition 65 Chemical List on OEHHA’s website.
Does Proposition 65 Apply to Me?
Menuez said the act affects “pretty much everyone.” Any business that manufactures or sells products in California, or sells directly to California consumers online, must comply with the act, he said.
Adding the mandatory warning labels might also require businesses to modify their websites, product labels and marketing literature to include the warnings. To get started, businesses should create a compliance plan, complete with deadlines. Photo Credit: ATA.
To ensure compliance businesses must understand which chemicals are used when manufacturing a product, and provide specific warnings about the chemicals. Menuez said Proposition 65’s requirements are based on exposure levels, not just a chemical’s presence. Therefore, businesses should know their products’ chemical composition and regularly assess exposure risks to ensure compliance.
Menuez recommends businesses work with qualified specialists to test their products’ exposure levels. If the company is sure its product uses a listed chemical, it should affix a Proposition 65 warning label to it. View the new warning regulations on OEHHA’s website.
Adding the mandatory warning labels might also require businesses to modify their websites, product labels and marketing literature to include the warnings. To get started, businesses should create a compliance plan, complete with deadlines.
Online retailers must also include online warnings for products containing chemicals listed by Proposition 65. “This ensures the warning is available to consumers even if the packaging gets discarded,” Menuez said.
Companies can also comply by reformulating the product or changing their operation processes to reduce or eliminate the listed chemicals.
Companies that violate the regulations risk $2,500 daily fines, as well as lawsuits and civil penalties. The businesses might also be required to pay the opponent’s attorney fees and civil damages in the instance of a violation. Menuez said pursuing violators is attractive to some plaintiff law firms because Proposition 65 can hold the offending party liable for attorneys’ fees.
Menuez said California’s attorney general reported 688 settlements of Proposition 65 violations during 2017, totaling $25.7 million in civil penalties. Of that total, $19.4 million (76 percent) went to attorneys’ fees. “Needless to say, there are high incentives for plaintiffs’ law firms to bring Prop 65 claims,” Menuez said.
To create a compliance plan and further protect yourself and your business against Proposition 65 lawsuits, contact the ATA. It has resources to help.