CALIFORNIA PROPOSITION 65
All products shipped by Promo Central into the State of California are subject to Proposition 65 (“Prop 65”) or The Safe Drinking Water and Toxic Enforcement Act of 1986. “Prop 65” was created through the ballot initiative process and was intended to protect California citizens and the State’s drinking water from a State determined list of over 850 chemicals that are “known” by the State to cause cancer, reproductive harm, or birth defects. This list and other information regarding “Prop 65” can be accessed at http://oehha.ca.gov/prop65.html.
Prop 65 requires that a “clear and reasonable warning” be provided by a Person/Company while doing business, who manufactures, produces, assembles, processes, handles, distributes, stores, sells, or otherwise transfers a consumer product which he or she knows to contain a chemical known to the state to cause cancer or reproductive toxicity to any person to whom the product is sold or transferred.
The lead state agency handling Proposition 65, the Office of Environmental Health Hazard Assessment (OEHHA; www.oehha.ca.gov), has established safe harbor levels which include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity for many of the 850 chemicals listed under Proposition 65. Exposure levels and discharges to drinking water sources that are below the safe harbor levels are exempt from the requirements of Proposition 65. A document that provides the status of OEHHA’s adoption or development of NSRLs and MADLs is available below.
For chemicals that do not have published or established safe harbor levels, the burden is on the defendant to establish an appropriate MADL or NSRL, and to show that the exposures in its products do not exceed these levels. For exposures to consumer products, such as promotional items, the level of exposure to the listed chemical is calculated using the reasonably anticipated rate of intake or exposure for average users of the consumer product.
Companies are becoming increasingly vulnerable to lawsuits for Proposition 65 indiscretions. Proposition 65 may be enforced by the California Attorney General, public enforcers such as district attorneys, and private plaintiffs suing in the public interest (after they have first served a 60-day notice of violation on all public prosecutors and no public prosecutor proceeds to enforce the alleged violation). A plaintiff may seek injunctive relief as well as penalties of $2,500 per violation per day. A more general California statute allows most successful plaintiffs to recover their attorneys’ fees as well. It is important to note the very long reach of Proposition 65 liability. One need not be doing business in California to be in the chain of Proposition 65 litigation. Indeed, you could be a New Jersey distributor of products sold to you by a Massachusetts supplier, and your client could be doing business in New York, with no California affiliation. Should one of the items you sold to your client end up in California, you and your supplier and your client could be named as defendants in a Proposition 65 lawsuit, and the venue would be in California.
Promo Central is fully committed to providing the highest quality, safest products for our clients and all Promo Central products meet applicable federal safety and warning requirements, standards and regulations as enforced by the Consumer Product Safety Commission, the U.S. Food and Drug Administration, and the Federal Communications Commission. While procedures have been established as part of our ongoing Product Safety initiatives throughout our supply chain to insure the purchase and use of raw materials that will meet Prop 65 standards, our efforts have to date been focused on the Third Party testing of our products to insure that they are in compliance with the very stringent regulations set forth by the CPSIA in regards to lead content in substrates and surface coatings of Children’s Products and Toys along with applicable Phthalate content. While lead content has been the focus of litigation in Proposition 65 cases, our current Proposition strategy has been to use our lead testing program to demonstrate that the products that we ship to California meet the Proposition 65 standards for lead.
Because we cannot test every piece of every order that we ship to California for every one of the Proposition 65 listed 850 chemicals, you may continue to have concerns about compliance with Proposition 65. If so, then the safest option is to include a label on each product or the product/carton packaging that may ship to the State of California which we will do free of charge upon request. The label will read as follows and will ensure full compliance with California Proposition 65 requirements:
WARNING: Cancer and Reproductive Harm - www.p65warnings.ca.gov.
For a plain language version of the Proposition 65 regulations, please visit: http://www.oehha.ca.gov/prop65/background/p65plain.html.
Proposition 65 Frequently Asked Questions
The following is a collection of answers that we think will prove to be helpful.
Why are we adopting these regulations?
As a manufacturer selling into California, we’re required by law to be compliant with Proposition-65 by August of 2018. In a effort to make things easier on you, we’re trying to be compliant with the regulations as soon as possible. It’s not just us: every company selling into California is required to get compliant with these regulations. Because we take compliance seriously, we’re being proactive and striving to be among the first in the industry to be fully compliant with the regulation.
Should products featuring warnings be avoided?
No! Nothing about our products has changed. We're required to label products if they have even trace amounts of a chemical. The goal of Proposition-65 isn’t to prevent consumers from using certain goods. Instead, per California’s OEHHA, Proposition-65 is meant “to notify consumers that they are being exposed to chemicals that are known [to the state of California] to cause cancer and/or reproductive toxicity.” However, the OEHHA goes on to say that a Proposition-65 warning “does not necessarily mean a product is in violation of any product-safety standards or requirements.” It’s important to remember that we produce all of our products according to both federal and internal safety standards. We subject our products to rigorous third-party testing to ensure that they are safe for everyone to use. These safety policies and procedures remain in place, and we continue to be committed to manufacturing safe products. As a result, you should remain confident that you are providing safe, quality goods to your customers.
What do our partners/distributors need to do?
Right now, the best thing for you to do is to educate yourself on Proposition-65 in order to answer any questions you may receive. It’s important for you to be able to respond to inquiries by providing necessary information about these new labels and warnings. Our website product database is fed live from the Sage database. Additional information on a per-product basis can be found within your Sage or ESP search products.
What do end buyers need to do?
If you are concerned about a product that you find available from Promo Central, please contact your local promotional product distributor for additional information.
I don't like these labels. Why shouldn't I just switch to another supplier?
All manufacturers selling into the state of California are required to comply with Proposition-65 regulations. If a manufacturer isn’t complying with the warning label requirements, they’re putting themselves at risk for a lawsuit. As a reseller or end-user, if you then distribute that non-compliant manufacturer’s product to customers in California, your organization is at risk for a lawsuit as well. Simply put, any organization that isn’t complying with these regulations is putting its business partners at risk. We have high standards for our products and will not do anything that could put our partners in jeopardy. Complying with these regulations is necessary for us to ensure that our partners are protected.
I still don't understand all of this. Where can I get more information?