California Prop 65: What You Need to Know

What is Prop 65 and why does it matter, even if you don’t live in California?

Let’s find out.

The history of California Prop 65

It might surprise you to learn that Prop 65 is more than 30 years old! Passed in 1986 by voters in California, Proposition 65 is an initiative aimed at addressing concerns about exposure to toxic chemicals. Prop 65 is also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. 

This act requires that businesses selling products in California include warnings for products that contain significant amounts of chemicals that are known to cause cancer, birth defects, or reproductive harm. The act also prohibits companies from knowingly discharging chemicals from the Prop 65 list into sources of drinking water.

The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program. Each year, the OEHHA evaluates current scientific evidence and updates the list of chemicals. Since its first publication in 1987, the Prop 65 list has grown from around 85 chemicals to more than 900 chemicals.

Types of Chemicals on the Prop 65 List

Chemicals on the Prop 65 list include heavy metals such as lead, mercury, and cadmium, as well as ingredients in pharmaceuticals, dyes, foods, solvents, pesticides, and common household products. Some of the chemicals are unlikely to be present in consumer products but may be used in the manufacture of these products, presenting a risk of chemical discharge into drinking water sources. Other chemicals on the list are by-products, such as from motor vehicle exhaust.

Why Prop 65 Matters

The Prop 65 list contains myriad chemicals, both natural and synthetic, that are recognized as causing cancer, birth defects, or reproductive harm. If you’re buying, say, a household cleaner, new rug for a nursery, or cookware, wouldn’t you want to know if there’s a chance it could leach dangerous chemicals?

Some Important Caveats for Prop 65

While Prop 65 is a fantastic step forward for consumer safety and environmental safety, there are some key caveats you should know before relying outright on Prop 65 warnings.

Time delays with compliance jeopardize effectiveness

First, businesses have a full 12 months to comply with warning requirements. This means that if a chemical is added to the list in August 2018, products containing that chemical are not required to carry the Prop 65 warning for that chemical until August 2019. You may, therefore, purchase a product in July 2019 only to find that the same item carries a Prop 65 warning just days or weeks later. 

As for the prohibition on knowingly discharging a listed chemical into drinking water sources, companies have up to 20 months to comply.

Businesses with fewer than 10 employees exempt

Second, businesses with fewer than 10 employees, and government agencies, are exempt from Prop 65’s warning requirements and prohibition on discharges into drinking water sources. Why the government would be exempt from the requirements is beyond me; shouldn’t government lead the way in promoting safe products and manufacturing practices?

It does make a certain kind of sense, however, to allow smaller companies to avoid the onerous costs of testing. That said, if you’re buying from smaller, local companies, consider asking them directly if their products adhere to Prop 65 regulations, even if they don’t carry official certification. Their willingness to respond, and their response itself, will likely offer a good indication of whether to trust their products.

Very low exposure exemptions

Finally, bear in mind that businesses are also exempt from the warning requirement if the degree of exposure to any given chemical is so low as to create no significant risk of cancer, birth defects, or reproductive harm. As such, where you do see a warning, it’s usually best to stay away from that product and choose one that adheres to Prop 65.

Enforcement and the Benefits of Prop 65

Since it was passed into law in 1986, Prop 65 has done a decent job of providing people in California, and farther afield, useful information they can use to limit or avoid exposure to problematic chemicals. Prop 65 has also helped raise awareness of the toxic chemicals all around us and has encouraged business to adopt safer manufacturing practices.

Because it is financially onerous for companies to create two sets of products – ones intended for sale in California, and others to be sold elsewhere – Prop 65 has had benefits beyond state lines, helping to improve safety of products across America. Of course, some companies have gone the other direction and carry on making toxic products but avoid selling them in California.

Over the years, Prop 65 has helped raise awareness of the dangers of alcohol in pregnancy, trichloroethylene in correction fluids, and toluene in nail care products. Newer formulation of paint strippers are, happily, now mostly free from the carcinogen methylene chloride, and the lead content of ceramic tableware and foil wine caps is now significantly reduced or non-existent.

Air quality has also been improved thanks to Prop 65. Since its adoption, there have been significant reductions in emissions of ethylene oxide, hexavalent chromium, and chloroform.

Prop 65 is enforced by the California Attorney General’s Office, and any district or city attorneys operating in cities with a population greater than 750,000. In addition, private citizens can enforce Prop 65 by filing a lawsuit in the public interest against any business alleged to violate the law. Consumer advocacy groups have also filed lawsuits, as have law firms. 

What happens if a business is in violation of Prop 65? In some cases, the business may be fined up to $2,500 every day until it corrects the violation, either by including required warnings, altering the product’s content, or by removing the product from sale.

Changes and Additions to Prop 65 in 2018

In 2018, just four chemicals were added to the Prop 65 list, making it an unusually slow year for additions. These chemicals were:

1. Nickel (soluble compounds) – effects on development health and male reproductive health
2. Gentian violet (Crystal violet) – cancer
3. N-Nitrosohexamethyleneimine – cancer
4. TRIM® VX – cancer.

In contrast, 2017 was a busier year for the OEHHA Prop 65 as they added 12 new chemicals to the list:

1. Chlorpyrifos – developmental
2. N,N-Dimethylformamide – cancer
3. Glyphosate (the chemical in RoundUp®) – cancer
4. n-Hexane – male reproductive health
5. 2-Mercaptobenzothiazole – cancer
6. Pentabromodiphenyl ether mixture [DE-71 (technical grade)] – cancer
7. Perfluorooctane sulfonate (PFOS, found in some non-stick cookware) – developmental
8. Perfluorooctanoic acid (PFOA found in some non-stick cookware) – developmental 
9. Pertuzumab – developmental
10. Tetrabromobisphenol A – cancer
11. Vinylidene chloride (1,1-Dichloroethylene) – cancer
12. Vismodegib – developmental, female and male reproductive health.

Other changes were afoot in 2018 for Prop 65, however. Regulations adopted in 2016 became operative in August 2018, with changes to the requirements for companies to provide warnings on products.

Under the new regulations, warning labels are now required to state that a product “can expose you to” rather than “contains” a chemical on the Prop 65 list. Companies must also list at least one of the chemicals prompting this warning (although it would be nice if all such chemicals were listed).

Other requirements include needing to list the internet address for OEHHA’s Prop 65 warnings, so as to provide information on how to reduce or eliminate exposure. Visually, a triangular yellow warning symbol is now required for most warnings. And, importantly, website warnings are now required for products sold over the internet. The OEHHA also added a requirement to provide warnings in languages other than English in some cases.

Can Prop 65 warnings go too far?

That’s right, there are times when the best decision may be to go with a product despite it carrying a Prop 65 warning. For example, many household appliances, big and small, contain heavy metals such as nickel and lead. These have to be listed according to Prop 65 regulations, but they may serve a necessary function in the product that actually makes it safer and more eco-friendly overall.

For instance, many energy-saving refrigerators, stoves, and ranges contain lead. This is typically found in the PVC insulation around electrical wiring and cords. Lead makes the plastic flexible, so it doesn’t crack and expose the wires. It is also a fire-retardant, which is important in an appliance that can reach temperatures of several hundred degrees. 

Lead is also present in the cords of other household items, however, including hairdryers, hand emulsion blenders, toasters, and even Christmas lights. It is much more likely that you will handle these cords, sometimes on a weekly or daily basis. While the potential for exposure to lead is minimal from handling these cords, PVC does disintegrate and flake off, creating lead-laced dust.

Appliances vs. Items that are handled regularly

As such, if there’s a Prop 65 warning on otherwise eco-friendly large appliances, you might still want to consider them. However, a Prop 65 warning should make you think twice if it appears on an item you’d handle regularly. And, if this is an item that children might handle, look for products that comply with Prop 65, or consider using cord insulators. If cords are starting to disintegrate, replace them. And, if you do handle cords that likely contain lead, wash your hands afterwards.

Also, don’t be fooled by products that don’t carry a Prop 65 declaration. As noted, companies are only required to include the Prop 65 label if they sell that product in California. This means that if you’re buying a product outside of California (that isn’t sold in California), a lack of label does not mean it is lead-free. Look instead for products that meet Prop 65 standards, regardless of whether they are sold countrywide.