Prop 65 Can Cost Your Business Thousands

How Prop 65 Effects Your Cannabis Business

Over the years some of our clients have been subject to Prop 65 attacks. California cannabis agencies do not regulate Prop 65 and do little to explain how to comply. So, what is Prop 65 and what can you do to protect yourself?

What is Prop 65?

The Safe Drinking Water and Toxic Enforcement Act otherwise known as Prop 65 was voted into law in 1986. It requires businesses to provide warning to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. In other words, companies are required to notify consumers of harmful chemicals in cannabis goods.

What harmful chemicals are in cannabis products?

Part of the California Environmental Protection Agency (CalEPA), the California Office of Environmental Health Hazard Assessment (OEHHA), is in charge of publishing a list of harmful chemicals. This list contains more than 1,000 chemicals. Marijuana smoke was added in 2009, so all cannabis flower is subject to Prop 65 warnings. Furthermore, manufactured products like oils, vape cartridges, and edibles probably contain one chemical on OEHHA’s massive list.

The OEHHA has also identified “cannabis (marijuana), marijuana (cannabis) smoke, cannabis extracts, and THC” for further assessment and review, so more cannabis related chemicals are likely to be included soon. You can submit public comment to this review electronically HERE.

Is your business subject to Prop 65 warnings?

There are two situations where your cannabis business may be exempt:

1) Businesses with fewer than 10 employees and government agencies

2) Situations where a business can demonstrate that “exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical”. However, this is very hard and expensive to prove during legal defense so we do not recommend availing yourself of Prop 65 under this exemption.

Unless you fall under one of those two exemptions, Prop 65 applies to your business. The majority of cannabis businesses are likely subject to Prop 65.

How to properly label your product

Prop 65 warnings should go on the informational or primary panel of your labeling. This is to comply with the OEHHA’s regulations CCR § 25601 and California Health and Safety Code 25249.6 which requires warnings to be “clear and reasonable.”

All products produced after August 30, 2018 must contain new safe harbor language. Under these new requirements, businesses need to identify the harmful chemical and which type of harm it causes. You will also need to include the required symbol which can be downloaded from the state website HERE.

The warning, with the addition of the symbols will look something like this: “WARNING; This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”

Navigating Prop 65 regulations can be tricky. Knowing how to properly label your product can save you from potential product liability lawsuits.

Give us a call for help in making sure your labeling is compliant.

OEHHA website on Prop 65 HERE

Read more on the topic HERE and HERE