California Proposition 65 affects retailers and dealers, too

Submitted by Jim Moss, JD
Recreation Attorney

Proposition 65 was passed by the voters in California in the late 1980s. The proposition required consumers to be notified if a product might contain a chemical that was carcinogenic or might cause harm to a fetus. The proposition required a simple warning label on any product that contained a chemical on a list maintained by the state.

The proposition was generally ignored for the first 20 years as the state gradually added chemicals to the list. However, as the testing and research got better the list of chemicals started to grow exponentially.

The list of chemicals can be found here: Chemicals Listed under Proposition 65. There are currently 967 chemicals on the list and new chemicals are added yearly, sometimes more often.

California recently determined that the consumer was not being adequately warned and the warning did not provide enough information to the consumer. The regulations from Proposition 65 were changed, and the new regulations go into effect for all products sold after August 31, 2018. A new warning label must be placed on products, in the catalog, on the website and possibly on an aisle of your store, for all products manufactured and for sale to the California consumer after that date. That new warning is specific in what it must contain and must include the name of one of the chemicals on the list that can be found in the product.

Manufacturers can no longer place the general warning on everything, even if they did not know what the possible danger was.

The state also decided the enforcement of the warning needed to be kicked into a higher gear. With the new regulations, comes a new way to enforce the law. Any consumer can act on behalf of the State of California and file a suit against any manufacturer who has not met the new regulations. Damages can be up to $2,500 per day per product, court costs and attorney's fees. The consumer who files the lawsuit will receive one-third of the money recovered.

This has created a new rush for law firms with an associate in or based in California. Consumers are being retained to buy products and have them tested to prepare to sue manufacturers. One consumer already purchased 60 products in one day from and sent them for testing.

Consequently, this has created a mad rush for manufacturers to determine what is in their products and what labels must be added to their products.

If a manufacturer has a product that contains a chemical on the list the label must be on the product, hangtag or packaging so the consumer can identify it before purchase. The first warning below is for chemicals that are carcinogenic.

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James H. Moss
(720) 334-8529