Understanding California Proposition 65

California Proposition 65 is the modern name given to a piece of legislation passed in the State of California in 1986 that came into enforcement in August 2018. The law is officially called The Safe Drinking Water and Toxic Enforcement Act.  The intention of this act is to require businesses in the State of California to provide warnings to consumers to potential exposure to chemicals that may cause birth defects, cancer, or other reproductive harm. There are currently over 900 chemicals listed in the act.

While the act is well intentioned, it has created an unintended consequence. Instead of businesses having their products tested to ensure compliance, they've opted to just label everything as a risk to avoid the expense of testing, and to avoid any legal liability. This doesn't result in any actionable information being passed to consumers.  People are left wondering if a product shows a warning message because it may actually be dangerous, or if that message is simply a tactic for businesses to avoid legal exposure or testing expenses.

And there's good reason for these businesses to simply put a sticker on every single product: in some cases the testing is astronomically expensive or practically impossible (in many areas there aren't any labs that will actually test for some of the substances on the list).

The act is intended to protect Californians from exposure from the products brought into their homes, and from exposure when visiting places of business. Warnings can be commonly seen in the following places:

• stickers on products
• posted signs in a building
• posted signs in a parking garage
• posted signs in a rental property

While the intention of protecting public safety can certainly be seen as a noble initiative, the practical application of the act for businesses is very difficult and has lead to a lot of consumer confusion.

The heart of the issue is around testing and toxic level determination. The act leaves it to businesses to decide if the product they produce, or their business environment exceeds the allowable level of any 1 of the 900 chemicals on the list. For the vast majority of businesses, it is completely impractical for them to test their product, or their business environment, for levels of each of the 900 chemicals, so they are left with a moral and legal dilemma. If they choose not to label their product with a warning, and their product or business environment does in fact exceed the allowable levels of one or more of the listed chemicals, they are legally exposed and can be subject to litigation. Another option for businesses is to simply label all products or environments with the warning, thus preventing any legal action should their product or environment be found to be in excess of the maximum levels. Since testing is so expensive, and in some cases barely possible, the vast majority of businesses choose to label everything. It ends up being the least costly and most practical approach.

So Californians have become used to seeing warnings are on pretty much every product they buy, and in most places of business:  things like warnings in clothing stores that some of the clothes being sold may contain chemicals in excess of the act, or in parking garages where car exhaust may collect (yes, that's on the list too!).

Many products purchased outside of California will carry these warnings too. Companies that sell their products in California are required by law to abide by the act, and since most of these companies sell products to other states and countries, they label every product bound for every geography just in case one of the products ends up for sale in California.

Here at Aquatell, many of the products we sell will carry the Proposition 65 Warning for the reasons outlined above. It's usually the bigger manufacturers in the industry who label their products. This is simply because they have the most to lose, legally speaking. Be careful when comparing similar products between two manufacturers. If the products being compared are made of the same materials, and one carries the Proposition 65 warning, while the other does not, this does not usually mean that one product contains dangerous chemicals while the other does not. In the vast majority of cases, it means that one manufacturer (usually the bigger one, usually with better products), is more concerned about being sued than the other.

This article from Chemistry World does a great job describing both the benefits and drawbacks to this legislation in more depth.