California Health & Safety Code Section 25249.5, et seq., more commonly known as Proposition 65, requires companies to provide special warnings to California consumers if the companies’ products contain chemicals known to the state of California to cause cancer and birth defects or other reproductive harm, if those products expose consumers to such chemicals above certain threshold levels. Among other things, companies who make or sell such products in California must give “clear and reasonable warning” to consumers. As of January, the list contains more than 900 chemicals. A company that fails to comply with the Proposition 65 warning requirements may be enjoined from future violations, as well as subject to a penalty of $2,500 per day per violation.

The reach of the regulation is significant. Proposition 65 requires companies to warn consumers about the mere exposure to a chemical, not just the presence of a chemical in amounts that pose a significant risk to health. If, however, a company can show that its product exposes average users to the chemical at a level below that stipulated by the California Office of Environmental Health Hazard Assessment (OEHHA), then the exposure is within the Safe Harbor Level and the company is exempt from the Proposition 65 warning requirements. The burden is on the company to prove that exposure falls within these levels, and, if OEHHA has not already adopted a Safe Harbor Level for a chemical known to cause cancer or reproductive harm, the company must establish, through scientific evidence, an exposure level within the Safe Harbor Levels.

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