California's Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, has significant implications for manufacturers, distributors, and retailers of plastic products. This regulation mandates the provision of clear and reasonable warnings about products containing chemicals known to cause cancer, birth defects, or other reproductive harm. Navigating compliance with Prop 65 is critical for businesses operating in California, especially those dealing with plastic products. This blog aims to provide clear guidance on how to adhere to these requirements.

What is Proposition 65?

Proposition 65 was enacted to help Californians make informed decisions about the products they use. The law requires the state to publish a list of chemicals that are known to cause cancer or reproductive harm, which is updated annually. As of now, this list contains over 900 chemicals. Businesses must provide warnings if their products contain any of these chemicals above the safe harbor levels. For plastic products, common concerns include phthalates, bisphenol A (BPA), and certain flame retardants.

Determining the Need for a Warning Label

Before affixing a Proposition 65 warning label to a plastic product, businesses must determine whether the product contains any listed chemicals at levels that require a warning. This involves understanding the chemical composition of the materials used in the product, including additives and colorants. Conducting laboratory testing or obtaining certifications from suppliers can help determine the presence and concentration of potentially harmful chemicals.

If a product does contain listed chemicals, companies must evaluate whether exposure levels exceed the established safe harbor levels. Safe harbor levels are set by the Office of Environmental Health Hazard Assessment (OEHHA) and represent the maximum allowable exposure level that does not pose a significant risk. If exposure from using the product is below these levels, no warning is required.

Crafting a Clear and Compliant Warning

If a warning is necessary, it must be "clear and reasonable." This means the warning should be easily readable and understandable by the average consumer. California regulations specify the wording and presentation of the warnings, which must prominently state that the product contains chemicals known to the state to cause cancer, birth defects, or other reproductive harm. The warning should specify the chemical(s) of concern and be placed on the product in a manner that ensures it is visible to consumers before purchase.

Businesses can opt to use the short-form warning, which is more concise but has stricter placement guidelines, or the long-form warning, which is more detailed. The specific language for each form is provided by Prop 65 regulations, and businesses must adhere closely to these guidelines to ensure compliance.

Ensuring Compliance and Risk Management

Compliance with Prop 65 requires ongoing diligence. Businesses should regularly review their product formulations and consult with legal experts or compliance specialists to ensure they meet Prop 65 requirements. It’s important to document all testing, evaluations, and decisions related to Prop 65 to defend against potential enforcement actions.

Companies should also consider consumer perception and potential impacts on their brand. Transparent communication about safety and compliance can enhance trust and confidence among consumers. In addition, staying informed about updates to the Prop 65 chemical list and regulations is crucial, as changes can impact compliance requirements.

Conclusion

California’s Prop 65 presents unique challenges for manufacturers of plastic products, but understanding the regulation, performing due diligence, and implementing clear warning labels can help businesses remain compliant. Careful attention to product composition, exposure evaluations, and regulatory updates are essential for reducing legal risks and maintaining consumer trust. By prioritizing safety and compliance, businesses can successfully navigate the complexities of Prop 65 and continue to thrive in the California market.