Proposition 65: Use Caution With Safe Harbor Levels

Question: My company is assessing a new product for compliance with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), and some substance exposure levels relative to the substances' safe harbor levels are inconsistent and difficult to document. How should we approach this?

Answer: When in doubt, we recommend you include a Proposition 65 warning on the product. This is a pragmatic approach to satisfying the scrutiny of enforcement bodies, and safeguarding against unpredictable manufacturing variances and exposure scenarios. If your company chose not to apply the warning labels, a law firm or similar entity could bring enforcement action against you if they found even one instance of non-compliance. This could lead to a whole range of financial penalties for the infraction, as well as court processes and costs.

If you believe a warning label would be detrimental to your business due to customer perception, you need to either avoid selling products with exposure uncertainty and/or clearly show that hazardous substances are below the safe harbor level.

Article is current as of 2020-08-07.

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