Prop 65
Proposition 65 is a “right-to-know” or warning law. It does not require reformulation, or that chemicals be removed from products, it only requires a particular warning label on products sold in California, where chemicals on the Proposition 65 List (see The Proposition 65 List - OEHHA) are present in the product for sale, and expose California consumers to the chemical above a published “safe harbor level.”
Prop. 65 plaintiffs will multiply the levels of a chemical detected in food products (for example, lead, cadmium or acrylamide) times the serving size on the package of the food product (assuming, of course, that all units in the calculation are consistent). If the outcome of that calculation exceeds the published “safe harbor level” for the chemical on the Prop. 65 List (link here: The Proposition 65 List - OEHHA) the plaintiff may initiate a new Prop. 65 matter.
Product Type | Alleged Chemical(s) |
|---|---|
Dietary Supplements | Cadmium, Mercury and Mercury Compounds, Lead and Lead Compounds, Perfluorooctanoic Acid (PFOA), and Perfluorooctane Sulfonate (PFOS) |
Seafood | Cadmium and Cadmium Compounds, Methylmercury, Mercury and Mercury Compounds, and Lead and Lead Compounds |
Prepared Foods & Snacks | Acrylamide, Cadmium, and Lead and Lead Compounds |
Fruits and Vegetables | Arsenic (inorganic arsenic compounds), Lead and Lead Compounds, Cadmium, and Mercury |
Herbs and Spices | Lead and Lead Compounds |
Noodles, Pasta, and Grains | Arsenic (inorganic arsenic compounds), Lead, Cadmium, and Mercury |
THC or CBD Products | Delta-9-tetrahydrocannabinol |
Skin Care | Diethanolamine, and Cocamide Diethanolamine |
Soaps and Cleansers | Diethanolamine, and Cocamide Diethanolamine |
Hair and Makeup Products | Diethanolamine, Cocamide Diethanolamine, Titanium Dioxide |
First Aid Products | Diethanolamine |
Sunscreen | Benzophenone |
Glassware and Ceramics | Lead and Lead Compounds |
Cookware | Perfluorooctanoic Acid (PFOA), and Lead |
Children’s toys | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), and Lead and Lead Compounds |
Note: This list is not comprehensive and is meant as illustrative examples. Please seek advice from your own counsel.
We require brands to be compliant with all federal laws as well as the laws in states in which their products are held in inventory and distributed.There are some cases where prop 65 issues in particular will be prosecuted and pursued regardless of exemption/compliance. It is the brands' responsibility to indemnify the retailer and Pod Foods when such issues occur. When a retailer or Pod Foods receives a notice of violation regarding Prop 65 we follow the following process:
The brand will be immediately notified.
Product will be withdrawn from the shelf and in many cases destroyed at the brands' expense, at the discretion of the retailer. Pod Foods will not be responsible for distribution costs associated with withdrawal or disposal.
Pod Foods will not distribute remaining inventory, but may instead hold it at Pod Foods' distribution center(s) pending a resolution of the dispute. The brand will be responsible for storage fees incurred.
The brand will be responsible for any and all legal fees associated with the dispute.
Ultimately whether to label your products with Prop 65 warning language is up to your own discretion, but keep in mind that even if you are compliant (i.e., your business is technically exempt from having the warning), you may still be pursued by bounty hunters if your product is in a high risk category, or otherwise. Given the potential expense associated with receiving a notice of violation or undergoing a dispute, it is advised that brands consider all angles carefully prior to making a decision.
This information is provided to brands primarily to share Pod Foods' policy about how Prop 65 issues will be handled as they relate to Pod Foods. Pod Foods does not provide legal advice. Please seek advice from your own counsel.
