Proposition 65

Proposition 65

What is Proposition 65?

In 1986, California voters overwhelmingly passed Proposition 65, formally known as “The Safe Drinking Water and Toxic Enforcement Act of 1986.”  In enacting Proposition 65, the electorate explicitly found that California state agencies had failed to protect Californians from hazardous chemicals posing a serious threat to their health and well-being.  Proposition 65 is a “right to know” law that creates a right for consumers and other individuals to be informed before being exposed to chemicals known to cause cancer and other reproductive harm, and enables private individuals or groups to enforce the law in the public interest when companies ignore the act's warning requirements.

Proposition 65 is codified at California Health and Safety Code sections 25249.5 ‑ 25249.13.  Among other things, Proposition 65 prohibits businesses, through offering consumer products for sale in California, from exposing anyone to chemicals known to cause cancer or reproductive harm, without first giving a warning.  Proposition 65 actions may be brought by the California Attorney General, district attorneys, certain city attorneys, or by private individuals or groups acting in the public interest.  As long as certain prerequisites are met—such as providing the alleged violators of Proposition 65 and the public prosecutors with a notice of the alleged violation, and confirming that no public prosecutor has elected to bring an action within 60 days of the notice—private enforcers can file Proposition 65 actions against the alleged violator in state court. 

If the private citizen is successful in proving that the violator caused an exposure to a chemical known to cause cancer or reproductive harm, the Court can impose civil penalties, or fines, of up to $2,500 per day for each violation.  The court can also order the violator to reformulate its product to eliminate the toxic chemical, stop selling its product in California, or provide a warning that the product contains a chemical known to the State to cause cancer or reproductive harm.  In private enforcement actions, 75% of the civil penalties assessed are paid to the State of California, and the remaining 25% is paid to the private enforcer.  If they win at trial, private enforcers can also recover the fees billed for the case by their attorneys.

Under Proposition 65, every year the Governor is required to publish a list of those chemicals known to the State to cause cancer or reproductive harm.  The Governor has designated the Office of Environmental Health Hazard Assessment (OEHHA) to implement Proposition 65.  OEHHA determines which chemicals to add to the list. Currently, more than 800 chemicals have been identified by the State as known to cause cancer or reproductive harm.

Businesses subject to Proposition 65 include, but are not limited to, manufacturers, importers, distributors, and retailers of consumer products.  It is important to note that a business need not be located in the State of California for it to be subject to Proposition 65.  A Proposition 65 lawsuit may be filed in any superior court in California.

What are the Proposition 65 Safe Harbor Levels?

If a business can show that its products expose average users to a potentially harmful chemical at a level below that stipulated by OEHHA, then the exposure from the products are within the Safe Harbor Level, and the business is exempt from the requirements of Proposition 65 for that product.   An exposure to a chemical known to cause cancer is within the Safe Harbor Level if the amount of chemical yielding that exposure has been determined to cause no significant risk of cancer, assuming a lifetime of exposure at that level.  For cancer, this Safe Harbor Level is referred to as the No Significant Risk Level. 

An exposure to a chemical known to cause reproductive harm is within the Safe Harbor Level if the amount of the chemical yielding that exposure has been determined to cause no observable effect, assuming exposure at 1,000 times the existent level.  For reproductive harm, this Safe Harbor Level is referred to as the Maximum Allowable Dose Level. Under Proposition 65, the burden is on the business defendant to prove that an exposure to a chemical in its products is below the No Significant Risk Level if that chemical causes cancer, or that it is below the Maximum Allowable Dose Level if the chemical causes reproductive harm.  OEHHA has adopted Safe Harbor Levels for many of the chemicals known to cause cancer and reproductive harm, but for the vast majority of chemicals, OEHHA has not adopted Safe Harbor Levels. For those chemicals that OEHHA has not adopted a Safe Harbor Level, the business defendant must establish, through scientific evidence, the No Significant Risk Level or Maximum Allowable Dose Level.

How Proposition 65 Benefits the Public

Proposition 65 explicitly recognizes the public’s right to know of the presence of toxic chemicals found in consumer products sold in California, and provides the State and private citizens with the authority to enforce the law through the state courts and exact civil penalties against businesses that violate the law.  Proposition 65 promotes awareness of toxic chemicals found in our everyday products, and with such awareness, advances the goal of protecting the health of the general public.  Although Proposition 65 requires that a warning be provided with consumer products containing chemicals known to cause cancer or reproductive harm, it is through enforcement actions that private enforcers are able to obtain agreements from businesses to go above and beyond the requirements of Proposition 65 by reformulating their consumer products to reduce or eliminate the presence of such chemicals. The Chanler Group’s clients have been instrumental in obtaining such agreements from hundreds of businesses.  The Chanler Group’s clients have also been the moving force behind groundbreaking settlements with nationwide industries, such as the glass soda bottles, glassware, and fashion accessories industries, where dozens of businesses within such industries are given an incentive to come forward and participate in such settlements, referred to as “Opt-In Settlements.”

Of equal importance, Proposition 65 provides sorely needed additional revenue to the State, benefitting the people of California, through imposition of civil penalties on businesses found to be in violation of the law of up to $2,500 per violation, per day, and also through settlements where, in exchange for the businesses’ cooperation, a reduced amount of civil penalties can be assessed.  In Proposition 65 cases brought by private enforcers in the public interest, 75% of the civil penalties collected are paid to the State of California, while the remaining 25% are paid to the private enforcer who conducted thorough investigation and testing and  brought the violations to light.  When public enforcers, such as the California Attorney General, bring a Proposition 65 action, 100% of the civil penalties are paid to the State.  Nonetheless, for the past two years, The Chanler Group’s clients have collected more civil penalty dollars for the State, than the State and all other private enforcers combined have collected.

Proposition 65 Today

Currently, many of the carcinogens and reproductive toxins listed on OEHHA’s Proposition 65 list of chemicals have been found by The Chanler Group’s Clients to be present in common household products, decorated glassware and ceramicware, clothing, cosmetics, bags, foods, paints, office supplies, and furniture, to name a few. With its passage more than 25 years ago, Proposition 65 has protected California consumers by requiring businesses to provide clear and reasonable health hazard warnings with products containing chemicals known to cause cancer or reproductive harm; without Proposition 65, the public would have no right to such health hazard warnings.  Although Proposition 65 may only be enforced in California, we often obtain settlements with businesses that require more than just providing warnings, and instead can require the reformulation of entire product lines to reduce or eliminate offending chemicals.  Because of our success in inducing groundbreaking changes in nationwide industries, we are able to provide benefits to consumers far beyond the State’s borders. 

Proposition 65 is a “right to know” law intended to benefit the public, rather than a law to limit or prohibit companies from doing business in the State.  Through its mandated warnings, Proposition 65 alerts consumers in the State of California to the risk of potential exposures to chemicals causing cancer or reproductive harm and provides them with the ability to make an informed decision regarding whether to purchase or use such products. 

The Chanler Group’s clients have been bringing private enforcement actions in the public interest for the past 20 years, and have done more, through their settlement efforts, to enforce the right of California citizens to be informed of carcinogens and reproductive toxins in products, than any other private enforcer. Our clients have focused on pursuing market leaders and have been instrumental in causing industries to implement significant changes in their products.  Below is a representative list of cases initiated, or participated in, by our clients:

  • Lead in glass soda bottles (Pepsi, Coca-Cola, Dr. Pepper);
  • Phthalates in fashion accessories (Aldo, Kate Spade, Nine West);
  • Phthalates in children’s products;
  • Lead in grips of hand tools and utensils;
  • Toluene in nail polish (Revlon, Maybelline, Max Factor);
  • Lead in dishware (Wedgwood, Mikasa, Corning);
  • Lead, cadmium and chromium in auto paints (DuPont, PPG and Akzo);
  • Polycyclic aromatic hydrocarbons in flame-cooked burgers (Burger King, Carl’s Jr.);
  • Polychlorinated biphenyls and dioxins in ground beef (Tyson Foods);
  • Lead in soldered motherboards (Intel);
  • Toluene in spray paints (Sherwin Williams, Rustoleum);
  • Toluene in glues (DAP, Ace Hardware);
  • Benzene and toluene in 55 gallon drums (Shell Oil, Elf Oil);
  • Methylene chloride in paint strippers (3M); and
  • Nickel and chromium in welding rods (Lincoln Electric).

The reformulation commitments and agreements to provide warnings that our clients have negotiated in such cases have been significant and the penalties ultimately paid to the State of California have been substantial.  The text of Proposition 65 can be found at OEHHA’s website by clicking here.