Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, mandates warnings for California consumers concerning potential exposure to chemicals recognized by California as causing cancer or reproductive harm. These warnings aim to empower consumers in making informed choices about their exposure to such chemicals from the products they use. Oversight of Proposition 65 falls under the California Office of Environmental Health Hazard Assessment (OEHHA), which maintains a list of over 850 chemicals subject to the law. In August 2016, OEHHA implemented new regulations, effective August 30, 2018, altering the information required in Proposition 65 warnings.
Visit the new Proposition 65 warnings for more background details.
Proposition 65 and its regulations
You may have seen the following warning associated with certain brand products, as well as on other products purchased from other manufacturers:
WARNING: This product contains a chemical known to the State of California to cause cancer and birth defects or other reproductive harm.
What is this warning about?
This warning is the result of a unique law passed in California in 1986 called “Proposition 65.” Proposition 65 requires a warning to be included with any product sold in California that may contain any of the 900-plus chemicals that State of California regulators (as opposed to federal and other state regulators) consider harmful. These chemicals appear naturally in many of the foods we eat and are also present in many of the modern conveniences we take for granted. As explained below, failure to provide a warning can result in significant costs and penalties in California.
Is this product safe to use?
Yes, it is safe to use as instructed. All IndoorGuider products and Americana brand products meet federal and state laws (including California’s) for safety and restricted substances. A Proposition 65 warning is a notification that a product may include a substance on California’s Proposition 65 list. The list is broad and encompasses products purchased in California that are used or consumed in everyday living. For example, warnings have been required for coffee, vinegar, and fish. The Proposition 65 warning will also be found on vitamins, antacid tablets, kitty litter, china ware and crystal decanters, diesel exhaust, nail polish, spot remover, and even sand. The warnings posted on Amazon’s website warn against exposure from consuming fresh fruits, nuts, vegetables, beer, wine, canned goods, baked goods, and snack foods such as chips, as well as exposure from wearing jewelry, driving a car, using a power tool or touching an electric cord. As explained in the Wall Street Journal article, “If You Drink Coffee In California, be Warned it May Cause Cancer” warnings in California have become the rule rather than the exception and are largely ignored.
I purchased this product outside of California. Why are you providing the Proposition 65 warning to me?
IndoorGuider sells throughout the U.S. to retailers with national distribution end consumers. Each distribution warehouse can and does serve multiple states, including California. To avoid the potential Proposition 65 costs and penalties if a product without a warning is brought into California, we decided to include these warnings, regardless of origin of purchase. A California judge recently ruled that coffee must contain the Prop 65 warning for cancer. Starbucks and other coffee sellers will be facing potentially millions of dollars in fines for a failure to warn.
If the product is safe, why does IndoorGuider include this warning?
Under Proposition 65, compliance with federal and state safety regulations holds no relevance. Even if a product meets these standards, any presence of a Proposition 65 chemical, no matter how minimal, necessitates the manufacturer proving that the level falls below California’s established threshold for exposure. The definition of “exposure” is ambiguous, often leading to court decisions. Contesting a Proposition 65 case incurs substantial legal expenses for manufacturers. Given the option to avoid these costs and litigation risks, IndoorGuider and numerous other sellers and manufacturers choose to issue Proposition 65 warnings.
Doesn’t the State of California require evidence of harm to humans prior to placing a chemical on the Proposition 65 list?
No. In fact, California regulators require no evidence of harm or even likelihood of harm to humans prior to placing a chemical on the Proposition 65 list. Instead, evidence from animal testing has been deemed sufficient, even when those tests on animals are conducted with outlandish dosages. As an example, California’s initial decision to add BPA (Bisphenol A) to its Proposition 65 list is based on a 2008 study of high dose BPA testing on rodents. The dosage on rodents in that study was equivalent to a human consuming 264,000 cans PER DAY of food lined with BPA for a lifetime. Although that very same study concluded that there was insufficient evidence to treat BPA as a developmental toxicant to humans, California has used it as a basis for adding BPA to its Proposition 65 list.
What is BPA?
BPA (Bisphenol A) is a chemical first approved by FDA in the early 1960s. The resins are used to protect foods from microbial (botulism) and other contamination by coating the inside of metal products, such as some food cans. It is also used in the production of polycarbonate plastics and epoxy resins. These hard, clear, heat-resistant plastics are found in clear popcorn popper covers. They are also used on light switch covers and internal motor parts.
Can a chemical be on the Proposition 65 list even though it is considered safe by the FDA and the EPA?
Yes. BPA once again provides an excellent example. In August 2008, the FDA released a draft report finding that BPA remains safe in food contact materials. Thereafter, $30 million was appropriated under the 2009 stimulus budget to perform more studies on BPA. The EPA commissioned a study that was released in 2011. That study used humans rather than animals as its test subjects. Each subject was asked to ingest high doses of BPA. By monitoring blood and urine, the scientists found that the BPA was detoxified and eliminated from the body and was undetectable.
In the autumn of 2014, experts from the FDA representing various disciplines including toxicology, analytical chemistry, endocrinology, and epidemiology conducted a thorough four-year assessment of over 300 scientific studies on BPA (Bisphenol A). The FDA’s review concluded that there was no compelling information warranting a revision of the FDA’s safety evaluation of BPA. Furthermore, FDA scientists have recently determined that exposure to BPA from food sources for infants is significantly lower than previously thought, and that any trace amounts of the chemical entering the body, regardless of age, are swiftly metabolized and eliminated.
To summarize, both the FDA and EPA have extensively researched BPA, with overwhelming scientific evidence indicating its safety. Despite this, California has chosen to disregard these findings and include BPA on its Proposition 65 list.