How Not to Be a Victim of Prop 65
Appalling stories from businesses who faced California’s Proposition 65
Prop Sixty-Five cost us over three million dollars…
They wanted $100,000; we were scared…
I don’t know what Prop 65 is other than an opportunity for lawyers to go after small businesses and make money…
This is how many business owners have described Prop 65.
WHAT IS PROP 65?
Proposition 65 is a California law that requires labels on all products and areas that the state believes could cause cancer or reproductive harm.
Retailers and businesses are required to provide warnings to customers and employees regarding possible product exposures to the listed chemicals.
Places that require Prop 65 warnings:
- Dealership Showrooms
- Dental Offices
- Amusement Parks
- Designated Smoking Areas
- Enclosed Parking Facility
- Vehicle Exposure
- Vehicle Service & Repair
When I hear the phrase “Prop 65” right now, my hair stands up on the back of my neck.
JEFF HAROLD, President & CEO of West Coast Trends
PROP 65 VICTIMS
Failure to provide proper warnings can result in penalties as high as $2,500 per violation per day; each individual who failed to receive the appropriate warning is a separate violation.
Prop 65 cost us over three million dollars.
MICHAEL MOONEY, Director of Science and Education at Super Nutrition
Since 1986, nearly 20,000 lawsuits have been filed with over $600 million in settlement payments. In 2017, over 700 cases were filed with payouts exceeding $26 million. 2018 is predicted to be a record year for lawsuits and payouts.
Most businesses don’t even know about the law until they’re contacted by a lawyer to let them know they’re being sued.
Daniel Shawn, President and CEO of Travelon said that when they first heard about Prop 65, it came in the form of a letter from a law firm in California.
They wanted $100,000… we were scared and got a hundred thousand dollars in a year when you’re not making a lot of money, and you’re trying to bonus your staff, it took the wind out of our sails.
DANIEL SHAWN, President & CEO of Travelon
WHO CAN SUE THE BUSINESS?
In addition to the California Attorney General’s Office and any district or city attorney, ANY individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against the business that allegedly violated this law.
Plaintiffs only need to declare that a violation has occurred and do not need to toll or show harm, injury, or damage to people, property, or the environment.
So if your business has competitors and you are out of compliance with the new Prop 65 labeling rules, they can sue to kick you out of business.
California’s Proposition 65 also opened the door for lawsuit-crazy bounty hunters.
Some of the most active bounty hunters in 2017 took more than $1,000,000 from businesses in the form of fees and fines.
I don’t know what Prop 65 is other than an opportunity for lawyers to go after small businesses and make money.
Cristina, Musical Instrument Case Manufacturer
Some businesses were forced to declare bankruptcy because of lawsuits.
If you choose to fight and lose — then you pay all the costs of all parties + penalties.
If you decide to settle, then you pay the compensation.
If you choose to fight and win — then you still pay your own legal fees.
Thus, if you have a compliance problem and are sued, you’re going to end up paying. The only question is the amount of money.
WHAT HAS HAPPENED?
The Prop 65 law has changed.
Beginning August 30, 2018, the old warning system will expire, and businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 must use the new warning system.
New OEHHA regulations change the safe harbor warnings to require:
- The name of at least one listed chemical that prompted the warning.
- The Internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them.
- ⚠ A triangular yellow warning symbol on most warnings.
IMPORTANT:
- Warnings must be provided in other languages if the product or service contains text in those languages (e.g., Spanish).
- Different colors of the triangle are allowed, but yellow is preferred wherever possible.
So, all businesses must update their Prop 65 signs and their placement for compliance reasons. Or risk being sued.
WHAT SHOULD BUSINESS DO?
If you are doing business in CA and you didn’t change old Prop 65 signs- change signs as quickly as possible.
You need to. It’s the law.
You can purchase a professional looking acrylic sign or glass poster from anywhere.
But you should know — there are a lot of non-compliant signs still being sold.
So check that your Prop 65 signs are updated with new OEHHA regulation changes and contain:
- The name of at least one listed chemical that prompted the warning.
- The Internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them.
- ⚠ A triangular yellow warning symbol on most warnings.
There is an extensive selection of Prop 65 signs featuring a variety of quality materials, finishes, and designer hardware with the updated format. For example, you can take a look here. Plus they provide free placement instructions.
Want to be sure you meet compliance requirements?
Pass a 30-second quiz and get your Prop 65 assessment for free.
