Recently, several Florida-based food, agricultural and manufacturing businesses have received a Notice of Violation from California-based plaintiff’s attorneys for allegedly failing to comply with the California Safe Drinking Water and Toxic Enforcement Act (also known as, “Proposition 65” or “Prop 65”).
About Proposition 65
Proposition 65 is a product labeling law that requires businesses with more than nine employees to label, reformulate or refrain from selling or distributing products in California that contain certain chemicals in concentrations listed by the California Office of Environmental Health Hazard Assessment as causing cancer or reproductive toxicity. The law primarily applies to all businesses in the chain of commerce other than retailers, although retailers are included if selling private label products.
There are over 900 chemicals on the California Prop 65 List. For many chemicals, the “allowable” concentrations are often well below the concentrations allowed by the U.S. Food and Drug Administration, U.S. Environmental Protection Agency, and Consumer Product Safety Commission. Organic products with “naturally occurring” concentrations of listed chemicals are also targeted under Prop 65. In short, compliance with federal regulations is generally not a defense against alleged Prop 65 violations.
Why Florida Businesses Are at Risk
Of importance to Florida businesses, Prop 65 is primarily enforced by plaintiff-side law firms on behalf of private citizens and advocacy or public interest groups. These “private enforcers” are sending Prop 65 enforcement letters to Florida businesses who have no physical presence in California but may have been involved in the supply chain of products sold or distributed in California. The penalty for violating Prop 65 is up to $2,500 per day, for each individual violation or non-compliant unit sold.
Publicly available Prop 65 notices of violation show that California plaintiffs’ attorneys are targeting Florida businesses for enforcement of Prop 65, including Florida businesses selling products to California customers through their online stores or websites. The products receiving notices over the last 12 months are primarily packaged food, canned food, dried fruits, vitamins and supplements, seasoning and spices, and apparel.
What You Should Do
If you manufacture, distribute, package or produce products sold in California and have questions, or if you have received a notice of violation, please do not hesitate to reach out to Fernando Diaz, by email or phone at FDiaz@Gunster.com or (202) 655-6747.
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