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.

 

 

 

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Photo of Jeffrey White Jeffrey White

I am a partner at Robinson+Cole who handles corporate compliance and litigation matters for both domestic and international manufacturers and distributors that make and ship products around the world. My clients have ranged from publicly traded Fortune 500 companies to privately held and/or…

I am a partner at Robinson+Cole who handles corporate compliance and litigation matters for both domestic and international manufacturers and distributors that make and ship products around the world. My clients have ranged from publicly traded Fortune 500 companies to privately held and/or family owned manufacturers. For those looking for my detailed law firm bio, click here.

I am often asked why I have focused a large part of my law practice on counseling manufacturers and distributors. As with most things in life, the answer to that question is tied back to experiences I had well before I became a lawyer. My grandfather spent over 30 years working at a steel mill (Detroit Steel Company), including several years in its maintenance department. One of my grandfather’s prime job duties was to make sure that the equipment being used was safe. In his later years, he would apply those lessons learned in every project we did together as he passed on to me his great respect and pride for the manufacturing industry.

Because of these experiences, I not only feel comfortable advising executives in a boardroom, but also can easily transition to the factory floor. My experience has involved a range of industries, including aerospace and defense, chemicals, energy, pharmaceuticals and life sciences, nutritional and dietary supplements, and retail and consumer products. While I have extensive experience in litigation (including product liability and class actions), I am extremely proactive about trying to keep my clients out of the courtroom if at all possible. Specifically, I have counseled manufacturers and distributors on issues such as product labeling and warranties, product recalls, workplace safety/OSHA, anti-trust, and vendor relations, among other things. I always look for the business-friendly solution to a problem that may face a manufacturer or distributor and I hope this blog will help advance those efforts.