There’s a lot of buzz right now around Proposition 65, which leaves many suppliers and retailers wondering how it affects them, what they should know and what to do about it to ensure compliance. Proposition 65 covers many different products, but this blog post will focus on Proposition 65’s application to consumer food products.
What is Proposition (“Prop”) 65?
Proposition 65, also known as the “Safe Drinking Water and Toxic Enforcement Act,” was enacted in November 1986, when California voters approved the referendum by a 63-37 percent margin.
In turn, proposition 65 requires businesses to provide warnings to California consumers about exposures to chemicals that cause cancer or birth defects and reproductive harm. These exposures can come from buildings, facilities, equipment, and/or consumer goods. The underlying policy is that, by requiring warnings of any such exposures, California consumers will be better equipped to make informed decisions about the places they visit and the products they buy. Proposition 65 is administered by the Office of Environmental Health Hazard Assessment (“OEHHA”), a is part of the California Environmental Protection Agency.
What chemicals are included in Prop 65?
In most cases, OEHHA determines which chemicals meet the scientific and legal requirements for placement on the Proposition 65 list. This list, which must be updated at least once a year, has grown to include approximately 900 chemicals since it was first published in 1987. The current version of the list of regulated chemicals is available at the following link: www.oehha.ca.gov/proposition-65/proposition-65-list.
In addition to maintaining the list of regulated chemicals, OEHHA also publishes maximum permissible exposure levels above which written warnings are required. These include No Significant Risk Levels (“NSRLs”) for Carcinogens, and Maximum Allowable Dose Levels (“MADLs”) for Chemicals Causing Reproductive Toxicity. The Proposition 65 NSRLs and MADLs can be found at the following link: www. oehha.ca.gov/media/downloads/proposition-65/chemicals/safeharbor081513_0.pdf
In cases where companies are sued for failing to provide the required warnings, the Courts are permitted to alter an established NSRL or MADL for the parties to the litigation, provided that sound considerations of public health support the finding of an alternative level. In these cases, the issue is most often litigated extensively with multiple experts opining on both sides before an acceptable alternative is agreed to.
What’s changing with Prop 65?
Under the current law (effective until August 30, 2018), if the use of a food product sold to California consumers will expose them a Proposition 65 chemical at levels exceeding the NSRLs and/or MADLs, then the food product label must contain the following warning:
WARNING: This product contains a chemical known to the State of California to cause cancer and/or (as applicable) birth defects or other reproductive harm.
As an alternative to requiring a warning on the product label, the regulations also permit the warning to be communicated “through shelf labeling, signs, menus, or a combination thereof.”
Whether on a product label or a shelf tag, the warnings must be “prominently placed upon a product’s label or other labeling or displayed at the retail outlet with such conspicuousness, as compared with other words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.” The regulations also create provisions for providing warnings for internet sales to California consumers.
Proposition 65 Warnings (Revised Law, effective August 30, 2018):
Here too, under the upcoming revisions to Proposition 65, effective August 30, 3018, if the use of a food product sold to California consumers will expose them a Proposition 65 chemical at levels exceeding the NSRLs and/or MADLs, then the food product label must contain the following warning:
WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and/or (as appropriate) [name of one or more chemicals], 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/food.
As an alternative to requiring a warning on the product label, the regulations also permit the warning to be communicated “on a posted sign, shelf tag, or shelf sign, for the consumer product at each point of display of the product.”
Here too, whether on a product label or a shelf tag, the warnings “must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use. As with the current law, the regulations also create provisions for providing warnings for internet sales to California consumers.
What’s the REAL difference between the current law and upcoming revised law?
Notably, the revised warnings do not say that the product actually “contains” a chemical. Rather, the revised warnings clarify that “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause caser or reproductive harm.”
Under the regulations, a “Consumer product exposure” is defined as “an exposure that results from a person’s acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.”
Thus, a Proposition 65 lawyer would likely argue, under the existing and revised regulation, that if it is reasonably foreseeable that a food (such as hash browns) will be fried by consumers prior to consumption, and the act of frying can actually create a Proposition 65 chemical at levels which exceed the applicable NSRLs and/or MADLs, then a warning should be required.
