What is it? and How Does it Impact Me?

What is Proposition 65?

Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. Proposition 65 was designed to protect California citizens and the State’s drinking water sources from approximately 900 chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals. To that end, Proposition 65 requires warning labels, signs, and notices to be placed on chemical-containing consumer products and in certain areas to warn the public. California maintains the list of chemicals that are subject to Proposition 65’s warning requirements, which is the state regularly updates. Failure to provide consumers with clear and reasonable warnings can expose companies to significant monetary penalties.

Ultimately, knife manufacturers should be aware of the content of your products. That means every chemical, in every product—even sheaths, packaging, branded merchandise and more. With this information, you can determine how Prop 65 applies to your business, and how you should respond.

Does my business have to be headquartered in California in order for Prop 65 to apply?

No. Regardless of where your business is headquartered, if your business is selling products or providing services anywhere in California, Prop 65 applies to you.

What requirements does Proposition 65 place on companies doing business in California?

Businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical, unless the business can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.

This warning can be given in several ways, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. The requirement to provide warnings takes effect one year after a chemical is added to the list.

Are any businesses exempt from Proposition 65’s requirements?

Businesses with less than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources.

Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or are significantly below levels observed to cause birth defects or other reproductive harm.

What chemicals are included under Prop 65?

The list of chemicals under Prop 65, as determined by the State of California, can be found here: chemicals known to the state to cause cancer or reproductive toxicity.

How can businesses determine if a warning is required?

Using its knowledge of its business operations and the chemicals it uses, a business can review the Proposition 65 list to determine whether its operations or products are likely to expose people in California to any listed chemicals. Depending on the level of exposure, the business may be required to provide a warning for those exposures. A business that determines it is causing exposures to a listed chemical may be able to use OEHHA’s safe harbor numbers to determine if it needs to provide a warning.

What are safe harbor levels?

To guide businesses in determining whether a warning is necessary or whether discharges of a chemical into drinking water sources are prohibited, the California Office of Environmental Health Hazard Assessment (OEHHA) has developed safe harbor levels. A business has “safe harbor” from Proposition 65 warning requirements or discharge prohibitions if exposure to a chemical occurs at or below these levels.

These safe harbor levels consist of No Significant Risk Levels for chemicals listed as causing cancer and Maximum Allowable Dose Levels for chemicals listed as causing birth defects or other reproductive harm. OEHHA has established over 300 safe harbor levels to date and continues to develop more levels for listed chemicals.

What are the changes to Prop 65 that go into effect on August 30, 2018?

In light of many controversies, California amended Proposition 65 to create new rules for product warnings and private litigation. The amendments regarding warnings will take effect on August 30, 2018.

Amendments–Product Warning Regulations
Knives are consumer products that may be sold at retail in California or may sold to consumers in California by way of internet and catalog purchases. The Proposition 65 amendments relating to consumer warnings—the ones most relevant to AKTI members–are discussed below.

The foundation of the Proposition 65 amendments that governs warnings is set forth in the “Safe Harbor” section of the regulations. That regulation provides:

(a) A warning is “clear and reasonable” within the meaning of Section 25249.6 of the Act if the warning complies with all applicable requirements of this article.

(b) The manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with this article either by affixing a label to the product bearing a warning that satisfies Section 25249.6 of the Act, or by providing a written notice directly to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act, which:

(1) States that the product may result in an exposure to one or more listed chemicals;

(2) Includes the exact name or description of the product or specific identifying information for the product such as a Universal Product Code or other identifying designation;

(3) Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet, that satisfies Section 25249.6 of the Act;

(4) Has been sent to the retail seller, and the manufacturer, producer, packager, importer, supplier, or distributor has obtained confirmation electronically or in writing of receipt of the notice.

What should a Prop 65 product label include, after August 30, 2018?

Following is an example of what a label should include, before and after August 30, 2018.

Unless otherwise specified in Section 25607.1 et seq., a warning meets the requirements of this subarticle if it is provided using one or more of the methods required in Section 25602 and includes all the following elements:

(1) A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”.

(2) The word “WARNING” in all capital letters and bold print, and: For exposures to listed carcinogens, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.”

For exposures to listed reproductive toxicants, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”
For exposures to both listed carcinogens and reproductive toxicants, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”
For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”
Where a warning is being provided for an exposure to a single chemical the words “chemicals including” may be deleted from the warning content set out in subsections (A), (B), (C) and (D).