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California’s Proposition 65: Key Takeaways from the “Prop 65” Conference

This blog was originally posted on 11th October, 2023. Further regulatory developments may have occurred after publication. To keep up-to-date with the latest compliance news, sign up to our newsletter.

AUTHORED BY VICTORIA SMART, SENIOR REGULATORY COMPLIANCE SPECIALIST, COMPLIANCE & RISKS

Proposition 65 Annual Conference, September 2023

The Proposition 65 Annual conference was held in San Francisco on 18 September, attended by nearly 200 attorneys, manufacturers and scientists, with eight panels on prominent issues stemming from the law.

This year’s conference focused on the effectiveness of Proposition 65, its effect on industry and environmental law, and best practices for compliance and testing. This blog summarizes the key takeaways from the conference.

Key Takeaways

Proposition 65, officially the “Safe Drinking Water and Toxic Enforcement Act”, was a ballot initiative that became a California state law in November 1986 with the intent to address Cailfornians’ growing concerns about exposure to toxic chemicals. The law requires warnings of potential harm to be placed on products containing chemicals that Prop 65 administrators have identified and “listed” as hazardous to human health.

Panel discussions covered the following topics:

Environmental and commercial effect of Proposition 65 on many US states;
Over-Warning: The risk of labeling products with a warning where a listed substance is not known to be present in the product;
Changes to the Prop 65 statute to improve operation and effectiveness; and
Laboratories: Testing, certification and best practices.

Proposition 65 has Fundamentally Changed the Consumer Safety Landscape in the US and Beyond

Professors of environmental law and environmental health outlined the effect of Proposition 65 in the US and globally since its inception. Monitoring the results brought on by the statute, the Office of Environmental Health Hazard Assessment (OEHHA) found that 25 listed chemicals had substantially decreased in usage and 18 chemicals were significantly lower in California than the rest of the US. This trend is expected to continue.

Prop 65 has driven reformulation – the replacement of chemicals in products – such as replacing heavy metals in jewelry (2006); phthalates (2007); lead in water and in wheel weights.

Public awareness of chemicals identified as hazardous has also increased through Prop 65 chemical warnings, and the listing of greenhouse gases has influenced planet-wide climate change boundaries. Through the use of print media and visuals such as films on environmental crises, knowledge of the existence of hazardous chemicals has spread.

“Over-Warning” Could be Mitigated by Clarifying the Standard for Warning Labels on Products

The ambiguity and lack of clear boundaries in the Prop 65 statute creates a ‘low bar’ allowing unfounded warnings. The panel noted that warnings are often deployed to avoid lawsuits instigated without merit. The panel was aligned in suggesting that clarifying the standard for warning labels could be effectively promulgated by the administering agency (OEHHA).

Certain Changes to the Statute Could Improve the Effectiveness of Proposition 65

This panel of plaintiffs and defense attorneys specializing in Proposition 65 litigation considered revisions to the Prop65 statute. Their proposed amendments were:

Add, as a factor in the warnings requirement, the duration of the exposure;
Set a penalty for violation as an incentive, or in exchange for, reformulation;
Require judicial oversight, eliminating private settlements of the 60-day Notices served;
Increase the power of the Attorney General to step in to the action;
Establish a timeline that would allow the manufacturer to be brought into the action, releasing the retailer.

The Effectiveness and Difficulty of Testing and Certification

PFAS was a significant topic at this conference. Toxicologists confirmed that testing for PFAS is difficult and the method is not usable for Safe Harbor. PFAS compounds complicate the effort, and devices are the most difficult to test.

The final panel elaborated on the basis for differing results in testing done by multiple labs or between the manufacturer and the laboratory. Biased sample selection, the number of samples, contamination, multiple suppliers, and differing test methods affect the tests and the reports, and can leave a manufacturer with ambiguous or conflicting proof in defending a suit.