What Are the Consequences of Omitting a Required Proposition 65 Warning?
We are a small business based in Europe that sells fillet knives that are produced in China on Amazon in the U.S. We have included a series of "sharp object warnings." Do we need to add the Proposition 65 warning?
Proposition 65 (also known as California’s Safe Drinking Water and Toxic Enforcement Act of 1986) states that "no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state (California) to cause cancer or reproductive toxicity without first giving a clear and reasonable warning…" Thus, if the products contain any Proposition 65-listed substances, it is important that an analysis be performed to confirm that a warning under the law is not required. The cost to companies that fail to provide a required warning can be high. In 2021, alone, the California Attorney General reports that there were 166 consent judgments resulting in $23.65 million in payments (including attorney fees) and 650 out-of-court settlements that resulted in an additional $26.69 million in payments to private enforcers of Proposition 65. Even if you have determined—based on sound data and analysis—that no warning is necessary for a listed chemical in your product, a private plaintiff simply needs to detect the chemical in a product to pursue an enforcement action. The burden of proof then shifts to the business to demonstrate that the product is not subject to the law’s warning requirements.
Proposition 65 is a very complex regulation and determining compliance can be of equal, if not greater, complexity. Given the potential liability involved with non-compliance, we recommend consulting an attorney to determine Proposition 65 compliance requirements as they relate to your specific products.