Prop 65 May Affect California Optical Business

Fresh from The Vision Council (VCA):

Proposition 65 is a California initiative that became a state law in 1986 (updated in 2003) known as the Safe Drinking Water and Toxic Enforcement Act. “Prop 65″, as it is commonly referred to, sets out environmental regulations regarding toxic chemical substances that businesses are subject to when they sell merchandise in that State. While some of the Prop 65 controls are intended to protect California’s drinking water sources from contamination by these chemicals, others are more widely applicable and intended to allow California consumers, residents and workers to make informed choices and take precautions about the products they purchase and are exposed to which contain potentially hazardous chemicals. Civil action against Prop 65 law violators is normally brought by an Attorney General or District Attorney; however Prop 65 includes a private right of action which may be brought by “any person in the public interest.” We have learned that tort lawyers in California are looking for and litigating Prop 65 claims against eyewear manufacturers/distributors; and that several members of The Vision Council have recently been subject to such suits.

Prop 65 Definitions

  • Chemical Substances Covered
    • Prop 65 requires the Governor of California to publish a list of chemical substances that are known to the State of California to cause cancer, birth defects or other reproductive harm. The list contains a wide range of chemicals, including dyes, solvents, pesticides, drugs, food additives, byproducts of certain processes, or specialty chemicals used in industrial applications and may be naturally occurring or synthetic. The list is updated quarterly so businesses that are subject to Prop 65 should review the list on a quarterly basis to ensure that they are compliant.
    • See http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html.
    • Even if a substance is listed, however, Prop 65 will not be triggered if the amount of the substance is below a designated minimum amount. Information on the de minimis levels for each chemical may be found at the aforementioned link.
  • Companies Subject to Prop 65
    • Prop 65 applies to retail, mail order or internet sales of products in California. If you operate in California, or simply sell your products in California, then you are subject to this law. Any company with ten or more employees that operates within the State or sells products in California must comply with the requirements of Prop 65.
  • Violation Penalties
    • The penalties for violations of Prop 65 are not insignificant: any business that violates or threatens to violate Prop 65 is liable for a civil penalty not to exceed $2,500 per day for each violation.

Necessary Actions

If a business sells in California a product containing a substance or substances that are on the Prop 65 list in excess of the de minimis level for that substance, then a “clear and reasonable” warning must be provided to the public. The law allows for the warning to be provided by a variety of means, such as direct labeling of the product, posting signs at the workplace, or publishing notices in a newspaper,[1] depending on the circumstances and provided the warning is clear and reasonable. If you elect to label your product with the warning, then the obligation to do so is on the producer or packager rather than on the retail vendor (except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question). If the warning is on a label, it must be conspicuous enough to be read and understood by the consumer.

  • Can a Retail Outlet Provide a Store-Wide Warning in Lieu of the Producer Placing a Warning on its Label?
    • The short answer is yes, as long as the retailer does it correctly. Even if the producer or packager does not provide a warning label on its product’s packaging, according to Prop 65 the warning requirements can still be satisfied if the retail outlet provides a sufficiently descriptive warning through shelf-labeling, signs, menus, or a combination thereof. So, for example, the retailer can post signage to the effect that:
      • “WARNING: The following products contain a chemical known to the State of California to cause cancer [OR to cause birth defects or other reproductive harm]: Product X, Product Y, and Product Z.”
    • To satisfy Prop 65, each product sold at that retailer containing a Proposition 65 chemical is to be listed by name. We discussed this issue with the California Attorney General’s office and were advised that such a sign needs to be in close proximity to the identified product(s), applying a reasonableness standard, in order for it to satisfy the law as it relates to those product(s). The representative from the AG’s office said that the sign has to be close enough that it would be reasonable to expect the consumer to see it when making a decision whether to purchase the product.
    • Any member of The Vision Council who elects to rely on retail store signage in lieu of actually labeling their products, must be mindful that they will be ultimately responsible if the retailer’s signage falls short of any Prop 65 requirements or is not conspicuous enough.

Additional Resources

Proposition 65 Website

The Vision Council

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