No Poisonous Packaging: California’s Prop 65

In 1986, California voters approved an initiative to address their growing concerns about exposure to toxic chemicals. That initiative became the Safe Drinking Water and Toxic Enforcement Act of 1986, better known by its original name of Proposition 65.

Proposition 65 requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm and requires all businesses to notify Californians if chemicals in the products they sell exceed the threshold levels determined by the authorities. For example, food manufacturer will have to place warnings on the label if the product contains more pesticides or Bisphenol A residues than allowed under the law.

The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program. OEHHA, which is part of the California Environmental Protection Agency (Cal/EPA), also evaluates all currently available scientific information on substances considered for placement on the Proposition 65 list.

All larger businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical exceeding the limits published here.

Small businesses with less than 10 employees and government agencies are exempt.

A business has “safe harbor” from Proposition 65 warning requirements or discharge prohibitions if exposure to a chemical occurs at or below these levels.

Any district attorney or city attorney (for cities whose population exceeds 750,000) may enforce Proposition 65. In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. The number of lawsuits the have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, and private citizens and law firms have increased dramatically over the past years.

Penalties for violating Proposition 65 by failing to provide notices can be as high as $2,500 per violation per day. This has come at a cost for companies doing business in the state. All foreign suppliers are well advised to check the list of substances listed under Prop 65 and make sure their products are well inside the “safe harbor” zone.

Bisphenol A (BPA)

One of the recent chemicals added to the Prop A list is a chemical compound found in all kinds of plastics that apparently is a risk to reproductive health.

The problem: BPA is one of the “ingredients” of food packaging, albeit in very small proportions. The safe harbor level for BPA is 290 micrograms per day of exposure.

More facts to know:

FSMA: The Meaning of Misbranded Foods
FSMA: The Meaning of Adulterated Foods
Vermont Non-GMO law
FSMA: Letter of Guarantee