In 1986, California enacted the Safe Drinking Water and Toxic Environment Act popularly referred to as “Proposition 65.” Cal. Health & Safety Code § 25249.6 (West 2012). Proposition 65 requires that any product or services which contain certain chemicals with the potential to cause cancer or reproductive toxicity to give a “clear and reasonable warning” that the product or services contain such chemicals. The breadth of Proposition 65 is comprehensive applying not only to California business, but also to any other companies that sell products or engage in activities that could result in potential exposures in the State of California. Hence, any company which distributes products or performs services which have the potential to end up in California commerce should be aware of the Act and comply with its terms if necessary.

A distributor of a product or provider of services must provide a clear and reasonable warning to any consumer, worker or person who may be exposed to a wide ranging list of chemicals contained within the product or released during any services. Specific chemicals have been identified by California’s Office of Environmental Health Hazard Assessment (“OEHHA”) as having the potential to cause cancer or reproductively toxicity. OEHHA is routinely adding chemicals to this list of chemicals for which a warning must be given.

The Act provides for enforcement not only by state attorneys but also by private plaintiff attorneys who can seek stiff penalties and payment of their attorney fees if a violation of the Act is found. According to a report published by OEHHA, in 2011 alone, distributors paid approximately $30 million to settle more than 300 Proposition 65 litigation cases with private plaintiff attorneys. Litigation involving the failure to warn has been extensive and involved a wide range of defendant distributors including manufacturers, retailers, hotels and intermediary distributors. Recent lawsuits have been brought against coffee retailers, distributors of children’s costumes and manufacturers of medical supplements.

Greensfelder has assisted clients in evaluating their products and services to assess compliance with the legal requirements of Proposition 65. If you would like further information regarding Proposition 65 and its requirements, please contact a member of our Franchise & Distribution Practice Group.