Proposition 65 was passed into California law almost 20 years ago and attorneys
are still finding companies to sue and large settlements to collect. The
CCA office continues to receive phone calls from cleaners seeking help
with Proposition 65 issues. Unless you prefer to give away $20,000 or more
in a settlement, you MUST follow the provisions of this important law!
What is Proposition 65?
Proposition 65 is the short title for the Safe Drinking Water and
Toxic Enforcement Act of 1986.
Proposition 65 requires the Governor to publish a list of chemicals that
are known to the State of California to cause cancer, birth defects or
other reproductive harm. This list must be updated at least once a year.
Over 700 chemicals are on this list (including perc and other chemicals
used by cleaners).
Businesses that use any chemical on the list and have more than 9 employees
are required to provide certain public notifications so to allow California
consumers to make informed choices about the products/services they purchase,
and to enable residents or workers to take whatever action they deem appropriate
to protect themselves from exposures to the listed chemicals.
How is Proposition 65 enforced?
Enforcement is carried out through civil lawsuits. These lawsuits
may be brought by the Attorney General, any district attorney, or certain
city attorneys (those in cities with a population exceeding 750,000). Lawsuits
may also be brought by private parties acting in the public interest, but
only after providing notice of the alleged violation to the Attorney General,
the appropriate district attorney and city attorney, and the business accused
of the violation.
The notice must provide adequate information to allow the recipient to
assess the nature of the alleged violation. A notice must comply with the
information and procedural requirements specified in regulations. A private
party may not pursue an enforcement action directly under Proposition 65
if one of the government officials noted above initiates an action within
sixty days of the notice.
A business found to be in violation of Proposition 65 is subject to civil
penalties of up to $2,500 per day for each violation. In addition, the
business may be ordered by a court of law to stop committing the violation.
Can't we just due to have Proposition 65 thrown out?
After the passage of Proposition 65 many industries and large companies
filed lawsuits to have the law scaled back or declared unconstitutional.
In 17 years, none of these lawsuits has been successful.
How do I comply with Proposition 65?
In order to protect yourself and your business you MUST perform both
of the warning duties listed below. Failure to post a notice ont he premises
and failure to post a public notice via mail or your local newspaper exposes
you to potential lawsuits. Nearly every violation filed against a cleaner
is based on failure to warn/notify.
1. Post your Proposition 65
warning notice in each operating plant,
dry agency or cleaning store by the front door. It does not matter
what kind of store you have!
2. Publish a Proposition 65 warning notice every 90 days in your
local newspaper. Posting it in the Legal Notice Section of the paper is
permissible. Text to use for your published notice is below.
"The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition
65) requires the Governor to develop a list of chemicals determined by
the state to cause cancer, birth defects or reproductive harm. This law
also requires businesses to warn individuals of exposure to listed chemicals.
The following cleaner operates their facility in accordance with local,
state and federal environmental, health and safety laws. This facility
contains a chemical known to the State of California to cause cancer." (Print
the Name of Your Facility and the address at the end of this
CCA recommends keeping a file where you can save your notices after
they have been published. We also recommend keeping copies of invoices
and bills provided by your local newspaper when you publish your
warning notice. You will need them if you are ever mailed a violation
Another good suggestion (though not mandated by law) is to buy your poly
bags with the Proposition 65 warning printed on the side. Check with your
supply house and make sure you are purchasing the correct plastic bags.
What happens if I don't comply?
Most of the Proposition 65 lawsuits are filed by private attorneys.
these are attorneys in California whose entire business is built on filing
Proposition 65 lawsuits.
Businesses that are in violation will receive a 60 day notice of violation
letter. This letter contains the basis of the alleged violation, a certificate
of merit (required by law) and an invitation to respond or to meet to discuss
settlement. Depending on your response, the matter could end, enter into
settlement negotiations or proceed to court.
What mistakes do businesses make when sent a notice of violation?
The biggest mistake businesses make is ignoring the violation notification
letter. A 60 day notice of violation is not a joke nor is it "junk
mail." If you have a question as to whether the notice you receive
is genuine then contact the CCA office. We will be happy to help
The second biggest mistake is failing to consult with your attorney before
replying to a notice of violation. The Proposition 65 laws are very detailed
and complex. Upon receiving a notice of violation we recommend that cleaners
contact an attorney immediately. Have a licensed attorney review the notice
of violation, gather information from you and prepare any response letters
or communications. While it may cost to have this done, it may save you
tens of thousands of dollars in settlements costs.