What Michigan Businesses Need to Know About California’s Prop 65

California’s Proposition 65 (Prop 65), known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires California consumers to be notified if a product might contain a chemical that is carcinogenic or may cause harm to a fetus. When first passed more than 30 years ago, Prop 65 required a simple warning label on products that contained chemicals included on a list maintained by the State of California. Currently, the Prop 65 list names more than 900 harmful chemicals, including synthetic and naturally occurring chemicals that can be found in food, household products, dyes, pesticides, drugs, and solvents.

Michigan businesses beware: while Prop 65 is a California law, if your products may be sold in California, you must comply with these regulations.

Significant Changes and New Provisions

Recently, Prop 65 was changed to require more detailed warning labels and now mandates that warning labels include the name of the harmful chemical found in the product and be placed not only on products containing the chemicals but also in catalogs and on websites selling the products, and on signs in retail store aisles.

These more detailed warnings must be included on products manufactured on or after August 30, 2018.

Violations of Prop 65 can lead to penalties of $2,500 per day per violation. To avoid being hit with a penalty, Michigan businesses that ship their products to California should be aware of, and comply with, the following Prop 65 mandates:

• Safe Harbor Warnings– Warning labels must be “clear and reasonable” and state the product “can expose you to a chemical” that is known to cause cancer or reproductive toxicity. Previously, the required language was that the product “contained” a chemical. In addition, the label must include a triangular graphic and a link to the Office of Environmental Health Hazard Assessment (OEHHA) website, where the public can access detailed information about exposure to the listed chemicals.
• Chemical Names– At least one of the chemicals on the state-maintained list must be identified by name in the warning. This, in turn, provides consumers with a more detailed product warning, rather than the previous broad and general warning. When a chemical is added to the state’s list (which happens often), businesses have 12 months to comply with the warning requirements or else face penalties.
• Specific Warnings– The new requirements include particular warning language for certain products and scenarios, including exposure to food, dental care, raw wood, diesel engines, vehicles, enclosed parking facilities, amusement parks, service stations, repair facilities, and designated smoking areas.

In addition to these revised Prop 65 requirements, new requirements are in effect:

• Website Warnings– Businesses that sell their products on the internet must now include the required product warnings on their websites. According to Prop 65, the warning must be displayed on the website in a location that ensures California consumers will see it before making a purchase. If businesses sell their products through a catalog, the warning must also appear in the catalog.
• Foreign Language Warnings– If a product label’s warnings are in a language other than English, businesses should determine whether the content triggers the Prop 65 requirements.

Michigan Manufacturers

The changes to Prop 65 require manufacturers across the country, including here in Michigan, to determine what exactly is in their products and what labels, if any, must be included on them.

Under Proposition 65, if a manufacturer ships a product to California that contains a chemical on the state-maintained list, the appropriate warning label must be on the product, on any hanging tag, and on the packaging, so the consumer can view it before purchasing the product.

Notably, the revised Prop 65 regulations also ushered in a new method of enforcement. A consumer can now act on behalf of the State of California and file a lawsuit against a manufacturer that has not complied with the new requirements. In addition to damages of up to $2,500 per day per product, the consumer may be entitled to court costs and attorney fees.

If you are a Michigan business that manufactures products that could be sold in California, make sure you are aware of the Prop 65 law and regulations, what chemicals are in your products, and check those chemicals against the Prop 65 chemical list.  If your products have a chemical listed on the Prop 65 chemical list, you should consult with an attorney licensed in California who specializes in Prop 65 compliance.