If you’re an online retailer of parts or accessories, you’ve undoubtedly heard of Prop 65. Basically, it requires anyone selling products that contain lead, phthalates, asbestos or any other chemicals found on the California Prop 65 Chemical list to notify California consumers before they make a purchase.
Here’s some detailed information for retailers along with some best practice recommendations.
Obligatory Legal Disclaimer: Spork Marketing can not give you legal advice. We are not lawyers, and while what we recommend here is almost exclusively based on information we’ve received from legal professionals, we disclaim any and all responsibility for you following our advice and getting sued. We recommend you discuss whatever you decide to do with a legal professional.
What Is Prop 65?
You can get all the Prop 65 fine print details from California’s Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) here, but basically Proposition 65 requires businesses to notify Californians of possible exposures to chemicals that cause “cancer, birth defects, or other reproductive harm” in an effort to allow Californians to make informed buying decisions. This notification is usually in the form of a disclaimer that looks like this:
This is a California requirement for anyone selling products to Californians, which means you don’t have to provide the disclaimer for all consumers.
So Prop 65 Is Just A Disclaimer?
Yes and no. Yes, it’s a disclaimer, but it’s more than just a standard label. According to several sources, you need to list the exact chemical(s) that your product contains that are carcinogenic or mutagenic…which is where we run into a big problem: Most companies have no idea which carcinogenic or mutagenic chemical(s) are in the products they sell.
If this describes your company, you can either:
- Pay to have products tested so you know what they contain, or
- Demand a list of carcinogenic/mutagenic compounds in their products from your suppliers/manufacturers, or
- Assume your product(s) contain a really common carcinogen like phthalates (extremely common in plastics), warn people about that chemical, and assume you’re OK
Obviously, the correct thing to do is pay for testing or demand a list of carcinogens, but we’ve seen lots of companies take the last option.
Should I Put The Prop 65 Disclaimer on Every Product Page?
While you could use website code to only show the Prop 65 disclaimer(s) to California residents:
- This kind of code is anything but reliable when it comes to identifying California residents
- We have not seen any measurable negative impact on sales from disclosing Prop 65 to all consumers
So, our recommendation is to show the Prop 65 disclaimer(s) to every website visitor. And putting them on every product page (or at least every product that contains carcinogenic or mutagenic) chemicals is definitely recommended.
Finally, please note that the Prop 65 disclaimer can’t be buried inside an element people have to click on, but it doesn’t have to be prominent either. Most companies (including Amazon) are putting it at the bottom of the product page in the disclaimer.
By the way, California has plenty of other funky requirements for etailers, including ones for sales tax (learn more in this post).
What Does SEMA Say About Prop 65?
The Specialty Equipment Market Association (SEMA) “promote[s] legislation and regulations to decrease the cost of Prop 65 compliance” and publishes Prop 65 info on its site where they generously provide contact info for SEMA’s Chief Corporate Counsel, so you can request referrals to Prop 65 defense counsel and laboratory facilities.
Notably, the SEMA page about Prop 65 says the following:
Even if a business is not certain whether a product requires warning, it can choose to comply with the Prop 65 warning requirements as a pre-emptive measure. Often, the cost of providing a warning is lower than the cost of laboratory testing and can help insulate a business from being sued. Although the California Attorney General looks at “over-warning” with disfavor, we are unaware of any cases brought against a business for labeling a product that does not require one. In some cases, a pre-emptive warning may be the most cost-effective way to mitigate risk.See https://www.sema.org/prop65
We’re not lawyers (we said that earlier, this is just a reminder), but it seems like “over-warning” is the cheapest and easiest way to comply with Prop 65.
How Do You Know If Your Part Has Harmful Chemicals?
A lot of manufacturers, especially small manufacturers, have not done laboratory testing to figure out which potentially dangerous chemicals exist in the parts they sell. That’s likely because they didn’t want to deal with the expense (or spend the time) and found it easier to just publish the disclaimer.
However, changes to Prop 65 in 2018 require retailers to indicate which chemical(s) is/are in the product and what type of health risk it/they pose. This makes a blanket safe harbor warning difficult to do. It forces your hand to either
- Do laboratory testing and possibly work with a toxicologist to understand how much exposure a consumer could have to that chemical or
- Warn consumers about a chemical that may or may not pose a risk
If you’re a manufacturer, our recommendation is to get your product(s) tested. It’s not as expensive as you might think, and you can probably just test one or two products to have a pretty good idea about the cancer and birth defect risks associated with your entire line.
If you’re a retailer, our recommendation is to demand Prop 65 disclaimer data from your supplier(s). The rules have been in place long enough now that every company should be in compliance.
What Happens If You Don’t Comply With Prop 65?
The enforcement mechanism for Prop 65 is odd. The State of California can choose to enforce the rule OR third parties can tell the state, “Hey, this company is breaking the rule. Do something about it!” Then if the state doesn’t act, that the third party can choose to sue.
Most small companies are not likely to be sanctioned for violating California’s Prop 65 requirements. But technically, any company can be sued for not providing the required disclaimer. So it’s a good idea to put a Prop 65 warning up on your site if you haven’t done so already (assuming you sell parts to people living in California).
The State of California requires retailers to provide a warning if a product contains a dangerous, or potentially dangerous, chemical. The warning must explicitly mention which chemical(s) are in the product and the harm(s) they may cause. The warning should appear in an obvious place on the part’s web page, in product catalogs, on packaging, and in point of sale materials.
If you’re an auto parts or accessories retailer, manufacturers should be providing Prop 65 disclaimer information to you. If you’re an auto parts or accessories manufacturer, you should invest in testing…but it’s important to note that many companies are over warning instead providing disclaimers based on testing. Seemingly without consequence.
Oh, and we’re not lawyers, so take our ideas here and discuss them with your attorney.