Pre-emptive Testing: Valuable Protection Against a Proposition 65 Lawsuit

No product, no matter how safe it is assumed to be, is immune to costly, brand-damaging, lawsuits.

In March 2018, a California judge ruled in favor of the nonprofit advocacy group, The Council for Education and Research on Toxics, against over 90 companies that produce or distribute coffee throughout the state.

The suit claimed that the chemical “acrylamide”, a bio-product of coffee roasting, renders all coffee-based beverages potentially carcinogenic, which means they are required to carry a warning label under the rules of California Proposition 65.

California Proposition 65, or simply “Prop 65”, is the common shorthand for the “Safe Drinking Water and Toxic Enforcement Act of 1986”, which requires that a warning label must appear on any product carrying above a specified threshold of a known carcinogen (known as a “Safe Harbor”).

There are over 950 chemicals regulated by Prop 65; however, Safe Harbor limits have only been established for about 300 of these chemicals, leaving a number of chemical ppm-safety levels open to interpretation, which can have an effect on a product containing any level of a regulated chemical.

Enforcement of this law can be performed by California’s Attorney General, district and city attorneys, but is increasingly being driven by “citizen lawsuits”. Without some understanding about the significance of Prop 65 in the California market, your company can be easily blindsided by a consumer-advocate lawsuit, leaving you vulnerable to costly fines, legal fees and bad publicity.

How Does Prop 65 Work?

California’s Office of Environmental Health Hazard Assessment (OEHHA) administers the program and maintains a list of all regulated chemicals based on their health and environmental risks.

Once a chemical makes the list, businesses with 10 or more employees whose products contain a listed chemical beyond the Safe Harbor limit, must provide a “clear and reasonable” warning, either directly on the product, or else in the form of marketplace signage visible to the public.

Approaching Prop 65 Updates

As any other consumer safety legislation, Proposition 65 is being constantly updated. In 2017, nine new chemicals were included in also added to the list in 2017, and will become legally restricted in 2018.

Additionally, the newest round of changes to warning label requirements will take full effect in August, 2018, and will include:

  • Changes to wording requirements, type size and imaging
  • Naming the specific chemical found in the product instead of just using of the word “chemical”
  • The inclusion of the address
  • Other specifics which address web marketing and multilingual use
  • A triangular yellow warning symbol Warning symbol on most warnings

The ‘Real’ Violation Costs

According to the OEHHA website: “Penalties for violating Proposition 65 by failing to provide notices can be as high as $2,500 per violation per day.” For coffee vendors in the lawsuit mentioned above, that fine could theoretically apply a per cup.

Though it is not likely that California’s coffee vendors would be fined such an astronomical amount in this particular case, the legal fees and settlement costs in trying to defend against a private claim can hurt a business severely. Becoming a defendant against a Prop 65 violation case can instantly put your company behind the 8-ball, because the very nature of the legislation--crusading for public health and the environment--gives the plaintive a distinct advantage.

The plaintiff's only real obligation is to prove that your product does in fact contain a restricted chemical and that the consumer will be exposed to it. The defendant must then go through the costly process of proving that the exposure level is below safe harbor levels, if indeed there is one for that chemical.

Because of these standards, defendants quite often agree to pay a court settlement--plus plaintive legal fees--to end the litigation.

A Pre-emptive Approach to Prop 65 Compliance

Entering the California market can be a very lucrative move for your business and great exposure for your product and your brand. The best approach to avoiding a damaging Prop 65 lawsuit is to make absolutely sure of your product compliance from the very start, through expert advice and thorough chemical testing.

QIMA offers comprehensive programs to help you achieve Prop 65 compliance, which include:

  • Product assessments
  • Lab testing
  • Technical guidance
  • Settlement reviews

QIMA expertise spreads across a wide range of products and industries, including those falling under increased consumer scrutiny, like children’s toys, electronics, cosmetics and jewelry. We know your values include delivering the safest product possible to the market while also being good stewards to the environment through responsible production. Let us help you make your market with these values intact.

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