The challenges of California's Proposition 65

Pro dealers, hardware stores and home centers in California are facing a challenge in the coming months as Proposition 65 expands its reach into day-to-day business dealings.

Not to mention vendors who will be better than busy identifying the ingredients of products carried by industry retailers.

Officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65 was enacted as a ballot initiative in California in 1986. The proposition protects the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and it requires businesses to inform Californians about exposures to such chemicals.

Proposition 65 also requires the state to maintain and update a list of chemicals known to the state to cause cancer or reproductive toxicity. It is overseen by the state’s Office of Environmental Health Hazard Assessment, which is the lead state agency for assessing health risks posed by environmental contaminants.

Now retailers must be ready to post proper signage that warns consumers of the dangers and toxins contained in some products. Noncompliance could result in heavy fines or unwanted litigation.

“The major concern is that a typical lumberyard could have 100 of these items in the products they sell,” said Ken Dunham, executive director of the West Coast Lumber and Building Material Association. “And the challenge there is that they may not even know what the supplier or manufacturer used in the product they are selling.”

The other challenge retail outlets face is just how much warning is sufficient enough. While a warning sign might be placed near a product, a lawsuit could challenge that the sign was not large enough or prominently displayed due to a lack of definition in the code.

“And then you have to spend money to defend it,” Dunham said.

The state has yet to put a precise definition on the books as to where or how the warning signs should be displayed. Locations that permit liquor sales in California are the exception, with clearly defined placement rules.

In recent communications via its LowesLink online portal, Lowe’s has told vendors that their products now need a Proposition 65 warning, even if a warning was not previously required. And if a product already has a Proposition 65 warning, it needs to be updated to be compliant with new requirements.

Along with submitting the proper warning information, Lowe’s also has told vendors that it will not take the responsibility of defining what products fall under Proposition 65.

“Lowe’s will rely on your substantial product expertise to identify products that fall under Proposition 65’s requirements,” the Mooresville, N.C.-based company said. “As a retailer, Lowe’s will not determine if a warning is or is not needed for your products.”

But membership of the WCLBMA includes retailers, manufacturers and distributors who operate on nearly all sides of the Prop 65 equation. Along with creating a warning label system — which should cover code requirements and the threat of litigation — the WCLBMA has been working to keep all of its members on the same page.

The association hopes to have a manual of compliance completed by May and have everything in order by October of this year.

“If we can all work together on this, to not pit one segment of the industry against the other, we should have enough information to keep this from becoming an ‘us versus them’ issue,” Dunham said.

That means having vendors, who are selling the products to retailers, completing due diligence on their part when it comes to product ingredients and warnings.

“Everyone is doing their job,” Dunham said.