Proposition 65 Compliance is Often Not About What Chemicals a Product Contains

A lot of our posts on this blog are about changes in the law, recent happenings in litigation, or conclusions we draw from looking at litigation activity. This post is different in that it is focused on explaining a concept that is and has been important for Proposition 65 compliance since the law and its enacting regulations first took effect.
Proposition 65 compliance and enforcement is often discussed in terms of whether a product contains a listed chemical, but chemical content is not what Proposition 65 requires a warning for. Proposition 65 requires a warning for exposures to listed chemicals. Some products that do not contain a listed chemical will require a warning because people using the products will be exposed to a listed chemical when the product is used as intended. Conversely, some products that contain a listed chemical do not require a warning because people are not exposed to the chemical the product contains. Wood dust is a listed chemical and provides a good way to illustrate this distinction. A wood table necessarily contains wood dust, but a wood table would not require a Proposition 65 warning for wood dust. By contrast, in a case brought by California’s attorney general, People of the State of California v. Ace Hardware Corporation, San Francisco Superior Court Case No. 995893, makers and sellers of saws were required to provide a warning for wood dust, despite the fact saws do not contain wood dust. No warning is required for the table that contains wood dust because users of the tables sitting and eating at it are not exposed to wood dust. A warning is required for the saw because a saw is used to cut wood, exposing the user to wood dust. That said, there are some products where the mere fact that the product contains a listed chemical is enough to know that an exposure is taking place. The types of products that most often would fit this category are food products. If the bread contains the listed chemical acrylamide, consumer are going to be exposed to acrylamide because they ingest the bread.
So what does the fact that mere presence of the chemical is not enough to require a warning mean in a practical sense? It means that determining whether a product is in compliance, or whether allegations of a violation of Proposition 65 are defensible, requires more than just a test from a commercial lab for the presence of a listed chemical. Yes, in the vast majority of instances a lab test for the listed chemical is the place to start. But the ultimate question that must be answered is does use of the product result in an exposure to the listed chemical? Is the listed chemical contained in the product in such a way that the user would come into contact with the listed chemical when using the product, or does use of the product create an exposure to a listed chemical when it is used as intended with certain other material? When the alleged exposure is to a chemical contained within the product, the discussion is put in terms of whether the listed chemical is “accessible.” If it is ultimately determined that the chemical is accessible, and an exposure results, then it becomes a question of how much of an exposure. Proposition 65 puts the burden of establishing that the exposure is below a level for which a warning is required on the party defending the claim. Generally, if you get to the question of how much of an exposure occurs, that usually means that the claim will have to be litigated, or a settlement paid out to dispose of it, along with an agreement to reformulate the product or provide a warning going forward. Whether to defend or settle a claim is a business decision that is informed by the advice of counsel, and heavily influenced by the reasonableness of the enforcer bringing the claim.