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Changes to California's Proposition 65

February 21, 2018

California’s Proposition 65 applies to any product sold in California, or any location in the state.  It requires that, if the product or location contains one of over 900 potentially cancer causing or reproductive toxicant chemicals, a specific warning must be given to the purchaser of the product, or persons on the premises.  Liability for failure to provide the warnings can be imposed even if a manufacturer doesn’t directly sell to California.  Liability includes both penalties and attorney fees.

While these regulations have been in existence for more than 30 years, on August 30, 2018 new and more stringent Proposition 65 regulations go into effect in California. As a result of these changes, many companies that have implemented company-wide product warning protocols to ensure Proposition 65 compliance will have to substantially revise their compliance programs before the effective date.

While these changes are quite specific, generally it can be stated that:

  • The old "safe harbor" language will no longer be safe.
  • The new "safe harbor" warning regulations require specific identification of at least one chemical, and sometimes more.
  • The new regulations include changes for both product based exposures and environmental based exposures;
  • On-line warnings will now be required prior to internet purchases.
  • Importers, distributors and manufacturers can (sometimes) pass the warning obligations down to retailers.

Because these regulations, and the changes, are specific and technical, it is important than any company that does business in California or whose products are sold in California (even by someone else), speak with an attorney to ensure compliance with Proposition 65.

Clark Hill’s attorneys are experienced in Proposition 65 litigation and have represented companies across industries and product lines. For more information contact Michael Sachs, Barbara Adams, Georges Haddad or any member of our Environment, Energy and Natural Resources Practice Group. 

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