Proposition 65

California’s Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted in 1986. Generally, the proposition protects the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform Californians about exposures to such chemicals.  In accordance with Proposition 65 the state maintains an updated list of chemicals known to the state to cause cancer or reproductive toxicity.  Currently, this list contains over 1,000 separate chemicals, and the inclusion of an unacceptable level of any one of those, without a suitable warning label, can subject the product manufacturer or retailer to liability.  Liability comes in the form of a “Private Enforcer” that sues on behalf of the California Attorney General and the cases are often brought by plaintiff attorneys seeking a quick, but substantial settlement.  Most often, the liability in these cases is speculative, the plaintiff attorneys file hundreds such cases, and the cost of settlement can be significant.  As a result, when a Proposition 65 case is brought, it is often critical to analyze the products early and determine whether there is indeed any of the prohibited chemicals present at an unsafe level, and to confirm any labeling that would avoid liability.  Often a key to the successful sale of a product including one of the prohibited chemicals is the careful analysis and labeling of the product for sale thus avoiding liability altogether.