If you plan to do business in California, you should make room for a Prop 65 warning label on your product packaging. It is required of establishments with a physical presence in the Golden State and remote retailers who intend to sell their merchandise to its residents.

Cyberspace has been brimming with all sorts of opinions about Prop 65 in the last few years. This is because of the changes that the local government made to it recently. Critics downgrade its overall importance, saying that it’s a recipe for commercial chaos and opens the legal system to abuse.

However, the fact remains that nearly two-thirds of Californians voted in favor of this law. And it remains effective 35 years after its enactment, which is a testament to the locals’ wide support.

What is Prop 65? And, more importantly, what is a Prop 65 warning label?

Proposition 65 Warning Label

In this article, we discuss what Prop 65 is, its implications for American businesses, the importance of compliance and ways to stay compliant.

What Is Prop 65?

“Prop 65” is short for “Proposition 65,” a California state law officially known as The Safe Drinking Water and Toxic Enforcement Act of 1986. It was passed into law after a direct voter initiative in 1986, winning 63%-37%, almost two-thirds of the total votes cast.

Prop 65 aims to protect the State’s water sources from substances that may cause cancer and birth defects or other forms of reproductive harm. It also requires establishments to provide local consumers “clear and reasonable warnings” about the presence of such substances in various aspects of their business. Those aspects include consumer product labels, workplaces, rental housing complexes, websites, catalogs and others.

What Is the Prop 65 List, and What Chemicals Are in It?

The Prop 65 is a database of all the chemicals requiring warnings as the State officially recognizes their links to cancer, reproductive harm or both. It currently has more than 900 substances. It was first drawn up in 1987 and is updated at least once every year since then, as new information is discovered and new materials are invented.

The following are the official sources of Prop 65 list updates:

What Agencies Are in Charge of Implementing Prop 65?

These local government agencies implement Prop 65:

(a) The Office of Environmental Health Hazard Assessment (OEHHA)

OEHHA is a subunit of California’s EPA. It determines what chemicals go into or get delisted from the Prop 65 list. It likewise specifies the regulations that govern Prop 65 warning labels and signs.

(b) The Office of the Attorney General of California

California’s Attorney General’s Office enforces Prop 65. It can take legal action against those who violate the law. It can initiate cases against errant companies, although private citizens, consumer advocacy groups and other organizations can also do the same.

Why All the Hype about Prop 65?

Prop 65 critics think that it is regulatory overkill and that it burdens businesses needlessly. It also allegedly opens the courts to abuse by litigious NGOs.

The truth is that some substances on the Prop 65 list are therapeutic drugs. They include:

  • Cancer drugs like teniposide, etoposide, azathioprine, chlorambucil and cisplatin
  • The Lyme disease antibiotic doxycycline
  • Barbiturates, which are potent anti-seizure drugs

And so on. However, these are drugs with few or no safe alternatives. And before doctors prescribe them, they are legally obligated to ask patients for informed consent, which entails disclosing possible side effects. 

On the other hand, for the non-pharmaceutical items on that list, they do have established links to cancer, reproductive disorders and a host of other medical conditions but lack significant health benefits.

Remember when Erin Brockovich and Ed Masry fought PG&E in court for leaking hexavalent chromium in the waters of SoCal’s Hinkley?

The Prop 65 list contains a host of heavy metals, such as lead, mercury, cadmium and hexavalent chromium. Metallic compounds are commonly found in colorants because of their light-absorbing and –reflecting properties. Many cosmetics and paints have them. With pollution, they also frequently contaminate water and soil, so they may also be found in “organic” products, which some may assume to always be safe.

The thing about heavy metals is that they may get into the body by ingestion, skin absorption, inhalation, etc., intentionally or unintentionally. With repeated exposures, they can accumulate in vital organs—the brain, kidneys, heart, liver… you name it! So it’s not just the first exposure that you need to worry about. There’s also the ones after that… and the tens after that… and the months and years after that.

We’ve all heard of Erin’s friend getting $5 million—but only after losing her reproductive organs to chromium-induced tumors. However, cancer takes time, with some taking decades to develop. For many Prop 65 heavy metals, what consumers really need to watch out for are the immediate consequences of toxic exposure.

For example, many old buildings have lead on their walls up to now, even after lead paints were banned in 1978. They put people, especially children, at risk of developing multiple organ failure from lead poisoning, which can develop with only a few months or years of exposure, depending on the load.

Kids can ingest lead paint chips accidentally and later have school troubles or just wind up in the ER. The symptoms of lead toxicity in both kids and adults include the following:*

  • Symptoms of brain and nerve damage like loss of balance, hearing problems, subtle and big-time behavioral problems, low IQ, linguistic difficulties, etc.
  • Anemia
  • Heart damage, as shown by ECG changes
  • Kidney failure, manifesting as very low urine volumes, difficulty of breathing from accumulating body fluids, incoherence, etc.
  • Low sperm count
  • Miscarriages

And many others. Mind you, lead mishaps are not rare. In fact, children living in some American communities are routinely screened for it.

Still think that Prop 65 is overkill?

*Sources:
  1. American Academy of Pediatrics—Detection of Lead Poisoning
  2. Centers for Disease Control—Blood Lead Levels in Children
  3. Harrison’s Principles of Internal Medicine—Heavy Metal Poisoning
  4. Uptodate Online—Lead Poisoning in Children
  5. Uptodate Online—Lead Poisoning in Adults
Metallic Solutions

Metallic Solutions. Different metallic compounds can exhibit different colors when dissolved in water. Their solid forms also have different colors.

How Does Prop 65 Affect American Businesses?

The law requires establishments to warn consumers about significant Prop 65 chemical exposures before entering their premises or using their products. Businesses may omit the warnings if they can guarantee that the substances in question pose insignificant hazards. The law also prohibits companies from purposefully unloading Prop 65 chemicals into drinking water sources. 

Prop 65 warnings may be incorporated in the following:

For product labels, the responsibility of putting Prop 65 warnings falls on the manufacturers, producers, packagers, importers, suppliers, distributors and retailers. This applies to both California-based and out-of-state establishments intending to sell to California residents.

The following organization types are exempt from putting Prop 65 warnings:

  • Businesses with fewer than 10 employees
  • Government agencies
  • Companies that can prove that the anticipated Prop 65 substance exposures are below the allowable limits or “safe harbor levels”

So if customers see a Prop 65 warning label on a product, it means that the latter can expose them significantly to some unsafe substances. Conversely, not having this label can mean that a product poses low cancer or reproductive health risks. However, companies that cannot guarantee their products’ safety yet continue to flout the law can get heavily sanctioned by the State once discovered.

Historically, the California Attorney General’s Office has successfully got companies to reduce or eliminate Prop 65 chemicals in their products. Lead-painted buildings, however, are a different matter. Building owners are not forced by law to remove lead from their premises, but they are required to put Prop 65 warning signs at entrances.

450 Labels / Roll
350 Labels / Roll
700 Labels / Roll

To Put or Not to Put the Prop 65 Warning Label: Why Should You Take This Law Seriously?

Compliance with Prop 65 saves you a ton of headaches and may even give great investment returns. Here’s why:

To-Put-or-Not-to-Put-the-Prop-65-Warning-Label

1.

California Is a Huge Eco-Friendly Market

The Golden State is one of the richest economies in the world. It is home to about 40 million people, growing by 0.4% annually. As of the first quarter of 2021, its gross state product has reached $3.4 trillion.

What business owner would not want a chunk of that money?

The thing is, Californians have always taken a pro-environment stance. Prop 65’s enactment and continued implementation are proof of that. So if you want to remain in business in this state, you better put on that warning label or show evidence that you don’t need it.

2.

You Avoid the Consequences of Breaking an Important Environmental Law

Modern consumers are wiser, thanks to the internet. If you fail to put a Prop 65 warning where there should be one, they will find out and make you pay.

Prop 65 violators incur a fine of $2,500 per day per violation. Lawsuits can lead to injunctions that can cease business operations. And let’s not forget the humiliating negative publicity that comes afterward, which can linger with your brand for years.

To avoid these hassles, regulatory compliance is your best move.

3.

You Get to Do Your Part in Protecting Public and Environmental Health

The internet equips people with useful information. But fly-by-night businesses may still take shortcuts, even if they compromise public and environmental health.

By taking steps to comply with Prop 65, you protect the same customers you expect to do business with for years. You also get to do your part in protecting the environment.

4.

You Increase Your Health and Environmental IQ

State laws are not crafted just to inconvenience you. You may also learn from them. Additionally, you may use the knowledge of harmful chemicals to protect yourself and everyone else around you.

5.

You Lead Your Organization by Example

By complying with Prop 65, you also help your staff identify unsafe chemicals and learn how to avoid them. They can pass on the information to their friends and families. This can make them feel protected and valued. Employees who feel valued express their appreciation by giving good customer service and free word-of-mouth advertising about their employers.

In short, when in California, do as the Californians do, and you’ll be better off.

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What Goes into a Prop 65 Warning Label?

Prop 65 warning labels give Californians the chance to make informed decisions before buying products. They are not meant to restrict or forbid the sale of Prop 65 chemicals. Old labels were required to write the word “contains” to warn of possible Prop 65 chemical exposures. However, their haphazard use led to public confusion and needless litigations.

In 2016, the State made some big changes to the law.

  • Warnings, if needed, must specify at least one Prop 65 chemical.
  • The web address www.P65warnings.ca.gov must be stated after the warning, as the site provides consumers further information explaining why they’re being cautioned.
  • The warning must be accompanied by the hazard triangle symbol colored in yellow.

The law took full effect after a two-year phase-in period. Starting August 30, 2018, all manufactured products must bear Prop 65 warning labels. However, businesses are discouraged from using them indiscriminately. Rather, they should first consult with a qualified professional to test their products to determine if they need to put Prop 65 warning labels at all. Products containing less than the safe harbor levels do not need one.

If a product is found to exceed the safe harbor levels of at least one Prop 65 substance, it must write a warning label showing the following:

  • The hazard triangle symbol—a yellow equilateral triangle with a black exclamation point at the center. If it cannot be printed in yellow, black-and-white prints are acceptable.
  • The word “WARNING” in bold capital letters. It should be as big as the hazard triangle symbol.
  • For products containing at least one carcinogenic Prop 65 substance, the text must say, “This product can expose you to chemicals including [name of the chemical/s], which is/are known to the State of California to cause cancer. For more information, go to www.P65warnings.ca.gov.”
  • For products with at least one reproductive toxicant, the text must say, “This product can expose you to chemicals including [name of the chemical/s], which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65warnings.ca.gov.”
  • For products causing exposures to multiple chemicals with different effects, the text must say, “This product can expose you to chemicals including [name of the chemical/s], which is/are known to the State of California to cause cancer, and [name of the chemical/s], which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65warnings.ca.gov.”
  • For products with chemicals having dual effects, the text must say, “This product can expose you to chemicals including [name of the chemical/s], which is/are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information, go to www.P65warnings.ca.gov.”
  • For products with only one Prop 65 substance, the words “chemicals including” may be omitted.

Product labels must have their warnings in 6-point font or no smaller than the smallest type used in the information panel. They must be attached to the primary packaging. However, if a product has opaque outer packaging that risks chemical exposure upon opening, the outer packaging must also have a Prop 65 warning label. Businesses may label both packaging layers if necessary.

Products in small containers, and thus, have small labels may have the short-form warning. Short-form Prop 65 labels are required to have at least the following information:

  • For carcinogens: the hazard triangle symbol, a big bolded “WARNING” followed by “Cancer—www.P65warnings.ca.gov.”
  • For reproductive poisons: the hazard triangle symbol, a big bolded “WARNING” and the text “Reproductive Harm—www.P65warnings.ca.gov.”
  • For chemicals that cause both conditions: the hazard triangle symbol, a big bolded “WARNING” followed by “Cancer and Reproductive Harm—www.P65warnings.ca.gov.”

Prop 65 amendments also make room for tailored warnings, which are carefully worded cautions about specific exposures. They are included for clarity or to give context about the exposure. Examples are alcoholic beverage and parking facility warnings. The rest of these tailored warnings are explained on the website. Businesses may request OEHHA to add more tailored warnings for their products.

For warnings originally written in a foreign language, an English translation must be provided beside them. 

Prop 65 warning labels must have strong adhesives and fade-resistant facestock. We recommend polypropylene labels and enKo Products’ high-quality sheet labels for DIY versions.

Labels for Prop 65 Warnings
Zebra Compatible Labels 2″ x 1″
Zebra Compatible Labels 1-1/2″ x 1/2″

Besides Product Labels, Where Else Are Businesses Required to Place Prop 65 Warnings?

Aside from product labels, establishments wishing to do business in California must also place the following Prop 65 warnings where appropriate:

Environmental Warnings

Occupational Warnings

Internet Warnings

Product Catalog Warnings

  • Environmental warnings—apply to places where specific areas expose visitors or residents to significant exposure. Examples are recreational centers and homes close to industrial plants. These warning signs must have conspicuous prints and should be placed on entrances and other appropriate sites.
  • Occupational warnings—must be installed when significant toxic exposures occur in the workplace.
  • Internet warnings—for products sold online, whether or not the seller is California-based. The display panel of the product of concern must bear the warning to make consumers aware of the potential hazard.
  • Product catalog warnings—for products featured in catalogs. The display panel of the product of interest must exhibit the warning so consumers can understand the risk.

The hazard triangle symbol and the big bolded word “WARNING” must be found on these notices.

Conclusion

In summary, Prop 65 is a law that protects Californians from exposure to carcinogens and chemicals that can bring reproductive harm. It also aims to prevent businesses from dumping such chemicals into the state’s water sources. Old Prop 65 warning labels and signs used to cause public confusion and supposed court abuse. So the law was amended in 2016. The changes took full effect in 2018.

The Prop 65 list is a database identifying chemicals known to cause reproductive harm or cancer in the State of California. It currently has more than 900 substances and is updated at least once a year. Updates come from various scientific and government organizations.

Prop 65 chemicals have established links to medical conditions other than cancer and reproductive toxicity. Such illnesses can take place within shorter periods of exposure than that entailed by most tumors. Businesses generally benefit from legal compliance. It allows them to protect public health, secure their investments, safeguard the environment and add prestige to their brand.

Unlike their predecessors, new Prop 65 warning labels specify the chemicals for which they are being made. Tailored warnings are also allowed to clarify some warnings’ contexts. The new regulations also require Prop 65 warnings on the internet, product catalogs, workplaces and other appropriate locations.

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