You may have seen this warning on various products:
WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.
What is California Prop 65?
Formerly known as Safe Drinking Water and Toxic Enforcement Act, Prop 65 requires the publication of a list of chemicals that the State of California determines causes cancer or birth defects. They also require companies that sell products that contain those chemicals to inform California residents about the risk of exposure to such chemicals by including a warning notice on the product label, or to inform the customer in an approved way before purchase. Proposition 65 warning notices can be seen all throughout California in restaurants, grocery stores, hotels, bars, schools, hospitals, and amusement parks. At one point, all coffee was even needing to be labeled as containing trace amounts of these chemicals, but that was eventually changed. Even frying food in a pan was considered to be exposing individuals to these potentially cancer causing chemicals.
Here is our stance as a company, not necessarily the legal standard.
What is important to note about Prop 65 is two-fold:
1). All of these chemicals are already protected in the United States by the FDA and worldwide by the WHO. You can’t just sell a product that is harmful to humans in the united States. The FDA regulates the chemicals and their amounts that are allowed to enter our products, and they have generally been quite successful in this.
California took this one step further and lowered the allowable standards to levels 1/1,000th of the FDA and the WHO. As such, products can test positive for these incredibly low levels just by having an abnormal concentration of certain trace minerals.
2). This law was unique in that it, “Allowed California residents to file actions against companies for the public good.” Essentially, the government no longer needed to be in charge of applying the law. Individuals could bring lawsuits against companies that were in violation.
What has unfortunately emerged is an ecosystem of unscrupulous lawyers who will sue companies, mostly small businesses, who may not know or be in compliance with the labeling law. These lawyers will sue for $2,500 per day that someone was in violation, sometimes seeking millions of dollars from small businesses. We have personally had multiple companies we know and do business with sued by private lawyers in essentially an attempt to grab as much money as possible, not to "protect the people of California" which was why the law was created.
Who is required to display a Prop 65 Warning?
Proposition 65 requires companies to put this notice on their products if there is any ingredient that tests over 1/1,000th of what the World Health Organization deems as “Safe Harbor Levels” of their list of chemicals, which includes some naturally occurring minerals. While many countries and states rely on federal governing bodies to set these levels in place, California has created their own law and stipulations that companies must adhere to if they plan to do business in the state of California. No other state or country enforces Proposition 65 law aside from the state of California.
When a company includes a Proposition 65 warning notice on a product page or label, it does not mean the product is unsafe. The warning notice is included to inform California consumers of the presence of a Proposition 65 listed chemical so the consumer can make an informed decision when purchasing the product.
It is important to note that heavy metals like lead, arsenic, cadmium and mercury do occur naturally in the soil and water. As plants grow, they pull nutrients from the soil and water, including trace amounts of some naturally-occurring heavy metals. This is why almost all coffee will test over the acceptable level of lead.
So do your products go over the Prop 65 limit?
In short, they do not. We have had our products tested on a regular basis and they have tested under the allowable limits every time. That said, if a law firm were to test 100 units, they may find 1-2 units that have an abnormally high amount of a trace mineral. Because the threshold is 1/1,000th that of the WHO, even the smallest concentration difference could trigger a Prop 65 violation.
For the sake of covering ourselves from money hungry law firms, we are simply choosing to place this notice on our products to protect ourselves from any possible scrutiny. The risk to reward is simply tilted too far towards the risk of a law firm coming after us in a money grab.
Every finished good we sell is safe for human consumption per the FDA and WHO standards. We hold the safety of our customers at the highest level, and would never sell something considered to be dangerous. After all, we use these products too.
For information about Proposition 65 go to http://www.oehha.ca.gov/prop65.html