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New Prop 65 Regulations Are Active!

As of August 30, 2018, California businesses must adhere to the new regulations relating to Prop 65 warnings.

By way of background, The Safe Drinking Water and Toxic Enforcement Act of 1986 (a/k/a Prop 65) requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, encounter in their homes or workplaces, or that are released into the environment. Businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical.

Prop 65 allows for private enforcement actions if it is brought “in the public interest.” This indefinite standard has notoriously been exploited by persons seeking attorneys’ fees and settlements rather than improving public safety. In particular, the cannabis industry has experienced its fair share of Prop 65 enforcement actions. For example, in May 2017, a single person sent approximately 700 60-day warning notices to dispensaries, alleging Prop 65 violations due to the presence of Prop-65 listed fungicides and insecticides in edible products. Failing to provide Prop 65 notices can result in penalties as high as $2,500 per violation per day. Due to this enforcement risk, many dispensaries and delivery services are requiring that all products have a Prop 65 warning, regardless of the type of product or if the product does not, in fact, contain any of the Prop 65 chemicals.

However, Prop 65 does not apply to all cannabis business or products, therefore, it is essential to understand when (and if) Prop 65 applies, and how to comply.

Prop 65’s warning requirements do not apply to:

  • Businesses with less than 10 employees
  • Products that do not contain any Prop 65 chemicals
  • Products where the exposure to Prop 65 chemicals is so low as to create no significant risk of cancer or birth defects or other reproductive harm.

The regulation does not necessarily require businesses to provide a warning statement to comply with the law. However, providing a warning is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings discussed below are deemed compliant with the law’s requirement for clear and reasonable warnings.

Where to place the warning notice: Prop 65 warnings can be provided by the following methods (CCR § 25602):

  • Warning on the product or product packaging – Short OR Long form
    • If a person will be exposed to a listed chemical immediately upon opening a product’s outer packaging through contact with the product, the warning should be placed on the outer container, package or wrapper.
  • On a sign, shelf tag, or shelf sign at the point of product display
  • Via electronic device to the purchaser prior to or during the purchase of the product (without requiring the purchaser to seek out the warning)

Warning Language: Businesses can choose to incorporate the long OR short form warning depending on the warning location (CCR § 25603).

Evoke Law can assist in reviewing your packaging and labeling for compliance with California state regulations, including Prop 65. Contact us at iplaw@evoke.law.

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