SELLERS BEWARE: PROPOSITION 65
Proposition 65 is a controversial California law that requires businesses to provide consumer product warnings about exposures to chemicals that can cause cancer, reproductive harm or birth defects. Products with exposure to these chemicals cannot be sold in California unless certain “clear and reasonable” warnings are given. Failure to provide such warnings can result in substantial monetary penalties and costly litigation. There are 900 chemicals on the prohibited list.
Products known to have exposure to these chemicals include foods, beverages, handbags, fashion accessories, textiles, jewelry and household goods. The obligation to provide warnings applies to all companies on the supply chain including manufacturers, distributors, importers, internet sellers and other retailers - even if located outside California. There are certain exemptions if the chemical level falls below the safe harbor provisions of the statute but such exemptions are difficult to establish.
Violations of Proposition 65 can be extremely costly. Penalties as high as $2,500 per day for each violation may be imposed in addition to legal fees which are allowed under the statute. Businesses paid about thirty million dollars to settle Proposition 65 claims in 2019 according to the most recent data released by the California Office of the Attorney General. In a recent case involving fashion accessories, several apparel companies including Kate Spade agreed to settle alleged violations and pay $2,274,076.68.
Proposition 65 claims are expected to continue to rise as more plaintiff attorneys acting as private enforcers troll websites searching for non-compliant products that are being shipped to or sold in California.
Businesses may be subject to costly Proposition 65 litigation unless there are strict restrictionson sales to California or the required product and internet warnings are given. Internet sales are the easiest way for companies to get caught. Companies receiving a Notice of Violation should promptly contact an attorney with experience in Proposition 65 cases. A strong legal defense can help achieve a more favorable settlement. Our office has handled several Proposition 65 cases. For more information or compliance assistance, email nabesq1@gmail.com .
This article is provided for general guidance and is not intended as legal advice.