California Proposition 65 is often viewed as a significant thorn in the side of manufacturers.  As previewed in our 2018 Corporate Compliance & Litigation Outlook, significant changes to California Prop 65 will be effective as of August 30, 2018.  If your company has not developed a plan to address these changes, now is the time.

Here is a checklist of items to consider:

• Does the law apply to me?
  • As set forth by the State of California, “Prop 65 Businesses are required to provide a ‘clear and reasonable’ warning before knowingly and intentionally exposing anyone to a listed chemical, unless the business can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.”  If you sell a product that might end up in the hands of a California resident, the law applies to you.
• Do I need to make any changes now?
  • Generally, a manufacturer can follow the old rules and label regulations for products manufactured BEFORE August 30, 2018.  Given the realities of manufacturing products, manufacturers need to start implementing changes if they have not done so already.
• Should I test my products?
  • Prop 65 does not tell you whether you need to test your products.  Rather, it provides guidance if you determine that your product contains one of the regulated chemicals and the levels exceed the “safe-harbor” (if a safe harbor even exists for a listed chemical).
• What changes need to be made?
  • It is hard to summarize all of the changes in a blog post.  A good summary of the types of changes that have been made to the warnings required is contained here.
• What are the risks of non-compliance?
  • The penalties can be severe with up to $2,500 per day for each violation.  There is a sophisticated group of lawyers who dedicate their practices to California Prop 65 so expect significant litigation against manufacturers who fail to comply.