Proposition 65 - the Safe Drinking Water and Toxic Enforcement Act of 1986

Proposition 65, more formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California law passed by citizen initiative with 63% of the popular vote. The statute reads:

"No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water…" (CA Health and Safety Code, Section 25249.5)

"No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning…" (CA Health and Safety Code, Section 25249.6)

Proposition 65 provides that the Legislature may amend the law by a two-thirds vote and only "to further its purposes."

List of chemicals: Proposition 65 requires the Governor to publish a list of chemicals that are known to the state of California to cause cancer or reproductive toxicity, and to update this list at least once a year. The Office of Environmental Health Hazard Assessment (OEHHA) maintains the list of chemicals regulated under Proposition 65. (CA Code of Regulations, Title 27, Section 27001)

The most recent list can be found here: http://www.oehha.ca.gov/prop65/prop65_list/files/P65single062212.pdf.

Businesses that expose individuals to listed chemicals, or discharge listed chemicals, must comply with the following requirements:

Clear and reasonable warnings: A business is required to warn a person before "knowingly and intentionally" exposing that person to a listed chemical. A business must be aware that it is causing an exposure, and the exposure must result from a deliberate act, like the sale of a product. There is no requirement that a business is aware that the exposure violates the law, or intends to violate the law or cause harm. The warning given must be "clear and reasonable" and must effectively reach the person before exposure. Warning requirements take effect 12 months after the date that a chemical is added to the Proposition 65 list.

Pre-approved ("safe harbor") warnings: The Proposition 65 regulations provide for certain warnings that, if properly transmitted, are deemed to be clear and reasonable. These are referred to as "safe harbor warnings." A discussion of the regulatory requirements for "safe harbor warnings" can be found here:

A business need not use the "safe harbor warning," and can provide an alternative warning as long as it is "clear and reasonable" under the statute.

Prohibition on discharges into drinking water: A business must not knowingly discharge or release a listed chemical into drinking water, or onto or into land where it passes or probably will pass into a source of drinking water. This prohibition takes effect 20 months after the date that a chemical is added to the Proposition 65 list.

Additional Links:

Proposition 65 Law and Regulations

Interpretive Guidelines for Prop 65

Safe Drinking Water and Toxic Enforcement Act of 1986