California Code of Regulations › Title 27 - Environmental Protection › Division 4 - Office of Environmental Health Hazard Assessment › Chapter 1 - Safe Drinking Water and Toxic Enforcement Act of 1986 › Article 9 - Miscellaneous › Appendix A - Office of Environmental Health Hazard Assessment California Environmental Protection Agency the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
The following summary has been prepared by the California
					 Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for
					 the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986
					 (commonly known as "Proposition 65"). A copy of this summary must be included
					 as an attachment to any notice of violation served upon an alleged violator of
					 the Act. The summary provides basic information about the provisions of the
					 law, and is intended to serve only as a convenient source of general
					 information. It is not intended to provide authoritative guidance on the
					 meaning or application of the law. The reader is directed to the statute and
					 OEHHA implementing regulations (see citations below) for further
					 information.
FOR INFORMATION CONCERNING THE BASIS FOR THE ALLEGATIONS IN
					 THE NOTICE RELATED TO YOUR BUSINESS, CONTACT THE PERSON IDENTIFIED ON THE
					 NOTICE.
The text of Proposition 65 (Health and Safety Code Sections
					 25249.5
					 through
					 25249.13)
					 is available online at:
http://oehha.ca.gov/prop65/law/P65law72003.html
.
					 Regulations that provide more specific guidance on compliance, and that specify
					 procedures to be followed by the State in carrying out certain aspects of the
					 law, are found in Title 27 of the California Code of Regulations, sections
					 25102 through
					 27001. [FN1] These implementing
					 regulations are available online at:
					 http://oehha.ca.gov/prop65/law/P65Regs.html.
WHAT DOES PROPOSITION 65 REQUIRE?
The "Proposition 65 List."
Under Proposition 65, the lead agency (OEHHA) publishes a list of chemicals
					 that are known to the State of California to cause cancer and/or reproductive
					 toxicity. Chemicals are placed on the Proposition 65 list if they are known to
					 cause cancer and/or birth defects or other reproductive harm, such as damage to
					 female or male reproductive systems or to the developing fetus. This list must
					 be updated at least once a year. The current Proposition 65 list of chemicals
					 is available on the OEHHA website at:
http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html
.
Only those chemicals that are on the list are regulated
					 under Proposition 65. Businesses that produce, use, release or otherwise engage
					 in activities involving listed chemicals must comply with the following:
Clear and reasonable
					 warnings.
A business is required to warn a person before
					 "knowingly and intentionally" exposing that person to a listed chemical unless
					 an exemption applies. The warning given must be "clear and reasonable." This
					 means that the warning must: (1) clearly say that the chemical involved is
					 known to cause cancer, or birth defects or other reproductive harm; and (2) be
					 given in such a way that it will effectively reach the person before he or she
					 is exposed to that chemical. Some exposures are exempt from the warning
					 requirement under certain circumstances discussed below.
Prohibition from discharges into drinking
					 water.
A business must not knowingly discharge or release a
					 listed chemical into water or onto land where it passes or probably will pass
					 into a source of drinking water. Some discharges are exempt from this
					 requirement under certain circumstances discussed below.
DOES PROPOSITION 65 PROVIDE ANY
					 EXEMPTIONS?
Yes. You should consult the current version of the statute
					 and regulations (
http://www.oehha.ca.gov/prop65/law/index.html
)
					 to determine all applicable exemptions, the most common of which are the
					 following:
Grace Periods.
Proposition 65
					 warning requirements do not apply until 12 months after the chemical has been
					 listed. The Proposition 65 discharge prohibition does not apply to a discharge
					 or release of a chemical that takes place less than 20 months after the listing
					 of the chemical.
Governmental agencies and public water
					 utilities.
All agencies of the federal, state or local
					 government, as well as entities operating public water systems, are
					 exempt.
Businesses with nine or fewer
					 employees.
Neither the warning requirement nor the discharge
					 prohibition applies to a business that employs a total of nine or fewer
					 employees. This includes all full and part-time employees, not just those
					 present in California.
Exposures that pose no significant risk of
					 cancer.
For chemicals that are listed under Proposition 65 as
					 known to the State to cause cancer, a warning is not required if the business
					 causing the exposure can demonstrate that the exposure occurs at a level that
					 poses "no significant risk." This means that the exposure is calculated to
					 result in not more than one excess case of cancer in 100,000 individuals
					 exposed over a 70-year lifetime. The Proposition 65 regulations identify
					 specific "No Significant Risk Levels" (NSRLs) for many listed carcinogens.
					 Exposures below these levels are exempt from the warning requirement. See
					 OEHHA's website at:
http://www.oehha.ca.gov/prop65/getNSRLs.html
for a list of NSRLs, and Section
					 25701
et seq
. of
					 the regulations for information concerning how these levels are
					 calculated.
Exposures that will produce no observable
					 reproductive effect at 1,000 times the level in question.
For
					 chemicals known to the State to cause reproductive toxicity, a warning is not
					 required if the business causing the exposure can demonstrate that the exposure
					 will produce no observable effect, even at 1,000 times the level in question.
					 In other words, the level of exposure must be below the "no observable effect
					 level" divided by 1,000. This number is known as the Maximum Allowable Dose
					 Level (MADL). See OEHHA's website at:
http://www.oehha.ca.gov/prop65/getNSRLs.html
for a list of MADLs, and Section
					 25801
et seq
. of
					 the regulations for information concerning how these levels are
					 calculated.
Exposures to Naturally Occurring Chemicals in
					 Food.
Certain exposures to chemicals that naturally occur in
					 foods (i.e., that do not result from any known human activity, including
					 activity by someone other than the person causing the exposure) are exempt from
					 the warning requirements of the law. If the chemical is a contaminant [FN2] it
					 must be reduced to the lowest level feasible. Regulations explaining this
					 exemption can be found in Section
					 25501.
Discharges that do not result in a
					 "significant amount" of the listed chemical entering any source of drinking
					 water.
The prohibition from discharges into drinking water does
					 not apply if the discharger is able to demonstrate that a "significant amount"
					 of the listed chemical has not, does not, or will not pass into or probably
					 pass into a source of drinking water, and that the discharge complies with all
					 other applicable laws, regulations, permits, requirements, or orders. A
					 "significant amount" means any detectable amount, except an amount that would
					 meet the "no significant risk" level for chemicals that cause cancer or that is
					 1,000 times below the "no observable effect" level for chemicals that cause
					 reproductive toxicity, if an individual were exposed to that amount in drinking
					 water.
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. 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. The notice must comply with the information and procedural
					 requirements specified in Section
					 25903 of Title 27 and sections
					 3100-3103 of Title 11. A private
					 party may not pursue an independent enforcement action under Proposition 65 if
					 one of the governmental officials noted above initiates an enforcement 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 to stop committing the
					 violation.
A private party may not file an enforcement action based on
					 certain exposures if the alleged violator meets specific conditions. For the
					 following types of exposures, the Act provides an opportunity for the business
					 to correct the alleged violation:
" An exposure to alcoholic beverages that are consumed on
					 the alleged violator's premises to the extent onsite consumption is permitted
					 by law;
" An exposure to a Proposition 65 listed chemical in a food
					 or beverage prepared and sold on the alleged violator's premises that is
					 primarily intended for immediate consumption on- or off-premises. This only
					 applies if the chemical was not intentionally added to the food, and was formed
					 by cooking or similar preparation of food or beverage components necessary to
					 render the food or beverage palatable or to avoid microbiological
					 contamination;
" An exposure to environmental tobacco smoke caused by
					 entry of persons (other than employees) on premises owned or operated by the
					 alleged violator where smoking is permitted at any location on the
					 premises;
" An exposure to listed chemicals in engine exhaust, to the
					 extent the exposure occurs inside a facility owned or operated by the alleged
					 violator and primarily intended for parking non-commercial vehicles.
If a private party alleges that a violation occurred based
					 on one of the exposures described above, the private party must first provide
					 the alleged violator a notice of special compliance procedure and proof of
					 compliance form.
A copy of the notice of special compliance procedure and
					 proof of compliance form is included in Appendix B and can be downloaded from
					 OEHHA's website at:
http://oehha.ca.gov/prop65/law/p65law72003
.
					 html.
FOR FURTHER INFORMATION ABOUT THE LAW OR
					 REGULATIONS
...
Contact the Office of Environmental Health Hazard
					 Assessment's Proposition 65 Implementation Office at (916) 445-6900 or via
					 e-mail at P65Public.Comments@oehha.ca.gov. Revised: May 2017[FN1]
All further regulatory references are to sections of Title
					 27 of the California Code of Regulations unless otherwise indicated. The
					 statute, regulations and relevant case law are available on the OEHHA website
					 at:
http://www.oehha.ca.gov/prop65/law/index.html.
[FN2]
See Section
					 25501(a)(4).
1. New Appendix A filed
					 4-22-97; operative 4-22-97 pursuant to Government Code section
					 11343.4(d)
					 (Register 97, No. 17).
2. Amendment filed 1-7-2003; operative
					 2-6-2003 (Register 2003, No. 2).
3. Change without regulatory effect
					 renumbering title 22, section
					 12903 and Appendix A to title 27,
					 section 25903 and Appendix A, including
					 amendment of appendix, filed 6-18-2008 pursuant to section
					 100, title 1, California Code of
					 Regulations (Register 2008, No. 25).
4. Amendment filed 11-19-2012;
					 operative 12-19-2012 (Register 2012, No. 47).
5. Amendment of
					 appendix and NOTE filed 11-19-2014; operative 1-1-2015 (Register 2014, No.
					 47).
6. Amendment of Appendix A filed 8-23-2017; operative 10-1-2017
					 (Register 2017, No. 34).
7. Editorial correction of first paragraph
					 (Register 2019, No. 17).
Note: Authority
					 cited: Section
					 25249.12,
					 Health and Safety Code. Reference: Sections
					 25249.5,
					 25249.6,
					 25249.7,
					 25249.9,
					 25249.10
					 and
					 25249.11,
					 Health and Safety Code.