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Proposition 65: Information that Product Manufacturers and Distributors Need to Know

If you are a nationwide manufacturer or distributor of consumer products (including products that may be sold in the State of California) you need to be aware of the stringent product labeling requirements imposed by California's proposition 65 ("Prop 65"). Proposition 65 was enacted by the State of California as a measure to inform and warn consumers about "potential chemicals" (utilized in consumer products) believed by the State of California to cause cancer, birth defects and/or reproductive problems. For product manufacturers, distributors and retailers the problem with Prop 65 is that California's list of hazardous Prop 65 chemicals is constantly growing and, at present, includes key components to commonly used plastics found in commonly used consumer products, including, plastics, PVC and vinyls used for sneakers, baby products, covers and an extremely broad range of products. In addition to plastics Prop 65's chemical list includes lead and has transcended to an assortment of chemicals found in jewelry, coffee and vinegar.

Some of the critical information that you must know about Proposition 65, includes:

California Sales

Irrespective of your business location, the place of manufacturer or the initial state of distribution, if your product enters the stream of commerce and is sold to consumers in the State of California your business will be subject to California's Prop 65 requirements;

Chemical Components

Under Prop 65 California maintains an ever expanding list of chemicals claimed by the State of California to cause cancer, birth defects and/or reproductive harm. If your products include these chemicals then you will be subject to the mandates of Prop 65. The state of California maintains a list of designated Prop 65 chemicals. Irrespective of your products, state or country of origin you must evaluate the chemicals used in your product. It is critical to understand that the Prop 65 designated chemicals are extremely expensive and includes, among many chemicals, commonly utilized Phthalates that are found in many plastics and lead found in commonly utilized gauges and jewelry. So definitely evaluate your product.

Warning Required

If your product is sold in California and if your product includes a designated Prop 65 chemical you must include a product warning. Failure to include the appropriate warning may subject your business to a lawsuit and claims by the California Attorney General or, worse, private lawsuits commenced by attorneys representing "consumer advocacy groups".

My experiences with Prop 65 is that California has created an extreme burden of manufacturers, distributors and retailers of common every-day goods. The regulation is extensive and the cost of litigation - in my opinion - quite unnecessary. However, there is one "saving grace" if you place the appropriate warning on your product, you may insulate your business from unnecessary lawsuits and legal fees. My advice, review your product catalog, review the chemicals in your products and speak with your legal counsel about structuring the appropriate warnings.

Ilana Sable

by Ilana Sable
New York and New Jersey Health Law Attorney

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