California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (usually referred to as “Proposition 65”, or “Prop 65”) has been expanded over its 32 years to include 900+ chemicals, and as of August 30, 2018 now requires far more specific and readily visible warning labels. Prop 65 is a ‘right-to-know’ statute that requires every business in the chain of commerce to be sure that California Consumers receive “clear and reasonable” warnings prior to being exposed to any of the ever-growing list of chemicals. The definition of clear and reasonable has also changed under the 2018 statutes. American businesses have paid out billions of dollars in Plaintiff Attorney’s fees, non-contingent civil penalties and payments in lieu of penalties since 1996.
The most unusual aspect of Prop 65 is that it authorizes private enforcers, or bounty hunters, to bring lawsuits against businesses that may not be aware that they have a listed chemical in their product or on their premises and the plaintiff does not need to show any actual harm. Virtually all lawsuits under Prop 65 are settled and the number and size of these legal actions have more than doubled since 2013. The new changes which also affect internet advertising, printed and online catalogs as well as each individual product or package will almost certainly result in even more lawsuits attacking far more companies.
Prop 65 is administered by California’s Office of Environmental Health Hazard Assessment (“OEHHA”) https://oehha.ca.gov/proposition-65 and the lawsuits and other legal activity is tracked by the California State Attorney General’s Office.