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Frequently Asked Questions
Why do I have to fill out these forms?
What is done with the forms?
Can I see the forms?
Who established the rules for filing these documents and filling out these forms?
Do the Attorney General and District Attorneys have to report on their cases?
What does Proposition 65 require?
Does Proposition 65 provide any exemptions?
How is Proposition 65 enforced?
Question: Why do I have to fill out these forms?
Answer:
In 1999, the Legislature adopted SB 1269, which modified Proposition 65 to require that persons bringing private enforcement actions notify the Attorney General when they file a case, and of the result of the case, and that the Attorney General make this information available to the public. Before that change in the law, Sixty-day notices alleging violations had to be filed with the Attorney General, but there was no comprehensive way of keeping track of the results of the notices.
Question: What is done with the forms?
Answer: The forms and the documents filed with the forms are maintained by the Attorney General as a source of public information concerning enforcement of Proposition 65.
Question: Can I see the forms?
Answer: The blank forms are available from our Prop65 Home Page. The collected data is available by contacting us.
Question: Who established the rules for filing these documents and filling out these forms?
Answer: The rules were set in a public rulemaking proceeding that results in the adoption of a final regulation. A proposed regulation was published for public comment, a public hearing was held, and additional changes to the proposed regulation were again offered for public comment before the regulation took effect.
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Question: Do the Attorney General and District Attorneys have to report on their cases?
Answer: SB 1269 only applies to private enforcers. The Attorney General follows a non-binding policy, however, of also reporting on his cases. Complaints and settlements in the Attorney General's cases always have been available to the public.
Question: What does Proposition 65 require?
Answer: The "Governor's List." Proposition 65 requires the Governor to publish a list of chemicals that are known to the State of California to cause cancer, or birth defects or other reproductive harm. This list must be updated at least once a year. Over 550 chemicals have been listed as of May 1, 1996. Only those chemicals that are on the list are regulated under this law. Businesses that produce, use, release or otherwise engage in activities involving those 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. The warning given must be "clear and reasonable." This means that athe warning must: (1) clearly make known 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. Exposures are exempt from the warning requirement if they occur less than twelve months after the date of listing of the chemical.
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. Discharges are exempt from this requirement if they occur less than twenty months after the date of listing of the chemical.
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Question: Does Proposition 65 provide any exemptions?
Answer: Yes. The law exempts:
Governmental agencies and public water utilities. All agencies of the federal, State or local government, as well as entities operating ublic 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.
Exposures that pose no significant risk of cancer. For chemicals that are listed as known to the State to cause cancer ("carcinogens"), a warning is not required if the business 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 for more than 250 listed carcinogens.
Exposures that will produce no observable reproductive effect at 1,000 times the level in question. For chemicals known to the State to cause birth defects or other reproductive harm ("reproductive toxicants"), a warning is not required if the business 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 (NOEL)," divided by a 1,000-fold safety or uncertainty factor. The "no observable effect level" is the highest dose level which has not been associated with an observable adverse reproductive or developmental effect.
Discharges that do not result in a "significant amount" of the listed chemical entering into 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 enter any drinking water source, 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" or "no observable effect" test if an individual were exposed to such an amount in drinking water.
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Question: How is Proposition 65 enforced?
Answer: Enforcement is carried out through civil lawsuits. These lawsuits may be brought by the Attorney General, any district attorney, or certain city ttorneys (those in cities with a population exceeding 750,000). 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. A notice must comply with the information and procedural requirements specified in regulations (Title 22, California Code of Regulations, Section 12903). A private party may not pursue an enforcement action directly under Proposition 65 if one of the governmental officials noted above initiates an 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 of law to stop committing the violation.
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