Proposition 65. One simple word and two little numbers. Together they have caused California businesses to spend hundreds of millions of dollars over the last 25 years. And as many apparel and accessory brands know, the only simple thing about Prop 65 is a forced signature on not-so-little settlement check(s) – because products did not carry a warning about trace amounts of certain chemicals.
Can it get worse? Maybe: “We’re from the Government and we want to help.” Over the last 90 days, Governor Brown and Cal-EPA began developing potential changes to Prop 65. These changes are only proposals, but there are some business-friendly provisions on acceptable chemical levels, warning content and limits on plaintiff litigation.
In particular, Brown vows to reduce abusive Prop 65 litigation by providing more certainty for businesses. https://gov.ca.gov/news.php?id=18026 However, his hoopla may have helped galvanize private enforcers. Numerous stakeholder meetings have yet to distill reasonable proposals that realistically could be adopted by the Legislature. (Because Prop 65 was a citizen initiative amending the California Constitution, a Legislative supermajority is needed to change the law.) So while Brown’s goals sounded useful, they created a united front for private enforcers: Don’t change my means of enforcing Prop 65 (i.e., legally shaking down California businesses). Was that Brown’s real objective? Stay tuned.
The Cal-EPA changes focus on warning language used to comply with Prop 65. (Remember, Prop 65 only requires a warning – nothing else.) These changes may require far more detail in the legally required warnings: https://www.oehha.ca.gov/prop65/law/061813extend.html.
Details such as the actual chemical(s) involved, their health effects (carcinogen, reproductive toxicity, etc.) and how to mitigate harmful exposures. Such information sounds sensible and could reduce uncertainty over private enforcer lawsuits. However, the impact on businesses could be significant. Legally compliant warnings could undermine marketing and sales, and there may be no product-sourcing alternatives for certain chemicals. Though none of us want to be exposed to carcinogens posing a health risk, the warning content fails to address Prop 65’s fundamental flaw: It is not intended to address real health risks. Instead, it is a disincentive used to promote alternative product-sourcing regardless of real health risks. With bounty-hunting attorneys roaming the stores and Internet, looking for products with infinitesimal amounts of wood dust – yes that is one of the 700+ listed Prop 65 chemicals– new warning requirements could spark a wave of dubious lawsuits.
These Prop 65 changes are likely to occur in the next 12-18 months, and we recommend staying abreast of the changes to protect your brand and your business.
