Proposition 65

By: Alissa Umemoto

Proposition 65 (formally titled "The Safe Drinking Water and Toxic Enforcement Act of 1986") is a California law passed by voters in 1986. Its goals are 1) to protect drinking water sources from toxic substances that may cause cancer and birth defects and 2) to reduce or eliminate exposures to harmful chemicals.

Proposition 65 is administered by California Office of Environmental Health Hazard Assessment (OEHHA). The first statutory requirement of Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources. The second requirement prohibits businesses from knowingly exposing individuals to listed substances without providing a clear and reasonable warning.

Businesses are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a listed chemical. By doing so, anyone who may be exposed to the known chemical are aware and can decide and choose whether or not to further expose themselves.

Manufacturers, distributors and retailers are subject to the warning requirement, if their products are sold in California. This warning can be given by a variety of means, such as by labeling of a consumer product and posting signs in the workplace.  Once a chemical is listed, businesses have 12 months to comply with warning requirements.

Bisphenol-A (BPA)

On May 11, 2015, a chemical known as bisphenol A (BPA) was added to Proposition 65 list in the State of California. Many companies doing business in the State of California are presently working to address the legal requirements of Proposition 65 with respect to food and beverages that are commonly packaged in containers that utilize linings or other components that contain BPA.

Effective May 11, 2016, warnings are required in California regarding certain exposures to BPA. Unfortunately, Proposition 65 has not developed a threshold determining when warnings for BPA are required. Warning signs must be no smaller than 5x5 inches and be displayed with such conspicuousness, as compared with other words, statements, designs, or devices at the point-of-purchase, as to render it likely to be read and understood by an individual prior to purchase of the affected products.

BPA is listed as a “female reproductive toxicity” chemical, so the warning shall specify the harmful effects like as below: