One year from now, companies that do business in California will have to comply with new warning regulations under the state’s Safe Drinking Water and Toxic Enforcement Act (“Proposition 65”).

Under these new regulations, California’s Office of Environmental Health Hazard Assessment (OEHHA), which is the lead state agency for the assessment of health risks posed by environmental contaminants, has mandated certain changes to the Prop 65 warning, including identifying at least one specific chemical where the long-form language is used, requiring a hazard symbol, certain new language and a link to the agency's website. The regulations go into effect on August 30, 2018.

Penalties for violating Prop 65’s warning requirement can be up to $2,500 per violation per day, and a company may be responsible for plaintiff’s counsel’s attorney fees.

Since 1986, Prop 65 requires companies with more than 10 employees that do business in California to provide warnings to consumers about Prop 65-listed chemicals in their products that may cause cancer, birth defect or other reproductive harm. These chemicals can be in the products that companies sell or distribute in California via retail stores, catalogs or even over the internet.

The Prop 65 chemical list, which is updated several times a year, has grown to include more than 900 chemicals since it was first published in 1987. It includes a wide range of naturally occurring chemicals as well as synthetic chemicals that include additives or ingredients in pesticides, common household products, food, drugs, dyes or solvents. Most Prop 65 “failure-to-warn” claims involve allegations of “lead” or certain phthalates (e.g. DEHP, DINP, DIDP) in the consumer products.

Under the new regulations there will still be exceptions for:

• Companies with less than 10 employees
• Exposures below the safe-harbor level – to the extent one is set and a company can prove it
• Warnings set forth in a Court-entered Order
• There is a short-form option warning that just states “CANCER” or “REPRODUCTIVE HARM,” but the company must still have knowledge of the chemical(s) for which it is warning