Do your products really need a Prop 65 warning? Believe it or not, the answer to this question is somewhat complicated - let's dive in.
The California Proposition 65 warning requirement was designed to incentives companies to move away from/remove harmful chemicals from their products. According to the state of California, the regulation has been successful - California Prop 65 has spurred reductions in air emissions, removed chemicals like trichloroethylene from correction fluids and even worked to eliminate the use of lead-containing foil caps on California wine bottles.*
Despite the successes of Prop 65, however, the regulation has burdened many companies doing business in California that sell or manufacture products.
Compliance for California Prop 65 involves special product testing to determine if and when a product warning label is required and then the placement of a warning label on a product stating the product (known to the state of California) may cause cancer or reproductive harm.
Because cancer isn’t great for product branding, many companies try to avoid needing a warning label on their products at all.
But, the Prop 65 compliance process of gathering product/component data, aggregating it, and running it against Prop 65 Safe Harbor chemical levels to understand whether or not your product needs a warning label can be challenging.
In order to determine if a warning label is necessary, the Office of Environmental Health Hazard Assessment (OEHHA) developed safe harbor levels for Prop 65 chemicals (important - not all chemicals have safe harbor levels - more below).
According to the OEHHA, a particular chemical’s safe harbor level is the key indicator of its chemical exposure risk. It’s quite simple:
“A business has "safe harbor" from Proposition 65 warning requirements or discharge prohibitions if exposure to a chemical occurs at or below the safe harbor level.” - OEHHA
There are approximately 300 safe harbor levels listed to date. If you have an OEHHA Prop 65 listed chemical in your product but the level of exposure is below the safe harbor level set by the state of California, then you do not have to put a Prop 65 warning label your product. So, if the OEHHA has not determined a safe harbor level for a particular chemical, any presence of that chemical requires a warning label.
A business can attempt to show that the anticipated level of chemical exposure will not pose a significant risk. Therefore, determining the chemical exposure risks of a chemical is an essential component of Prop 65 Compliance. But, exploring your product's risk can be very complex process. Many companies turn to professional consultants or software services that can provide strong data analytics around the chemical exposure levels and surrounding data.
To learn more about safe harbor levels and the new Prop 65 amendment set to shake up product shelves in California in 2018, view our recent webinar on California Prop 65 in 2018 alongside special guest speakers, Prop 65 News and Environmental Law LLP, we discussed topics like: