California Prop 65

California Prop 65

Proposition 65 has been a California state law since 1986. Passed as the Safe Drinking Water and Toxic Enforcement Act , "Prop 65," as it is commonly known, regulates the presence of certain chemical substances found in products sold in California, or present in the workplace in California. The goals of Prop 65 are to protect California's drinking water sources from contamination by these chemicals and to allow California consumers, residents and workers the information necessary to make informed choices so they can take precautions about the products they purchase or exposures they might receive to potentially hazardous chemicals.

Civil actions based on Prop 65 violations can be brought by the California Attorney General or District Attorney; however, Prop 65 includes a private right of action that may be brought by "any person in the public interest." Because of this, tort lawyers in California look for and litigate Prop 65 claims against companies believed to be in violation of the law. Over the past couple of years, several cases have been brought based on allegations that certain eyewear, including sunglasses and reading glasses, are in violation of Prop 65, resulting in several members of The Vision Council being subject to such suits. For more information, read the original memorandum that was issued to members of The Vision Council warning of these legal actions (October 31, 2013) and the most recent update on legislation (May 12, 2015).

Review Our Recent Member Email Updates

Learn More About Prop 65

Prop 65 Definitions

  • Chemical Substances Covered
    • Prop 65 requires the Governor of California to publish a list of chemical substances that are known to the State of California to cause cancer, birth defects or other reproductive harm. The list contains a wide range of chemicals, including phthalates, dyes, solvents, pesticides, drugs, food additives, byproducts of certain processes, or specialty chemicals used in industrial applications and may be naturally occurring or synthetic. The list is updated quarterly so businesses that are subject to Prop 65 should review the list on a quarterly basis to ensure that they are compliant.
    • Even if a substance is listed, however, Prop 65 will not be triggered if the amount of the substance is below a designated minimum amount. Information on the de minimis levels for each chemical may be found at using the link provided above. However, not all substances have a safe harbor level.
  • Companies Subject to Prop 65
    • Prop 65 applies to retail, mail order or internet sales of products in California. If you operate in California, or simply sell your products in California, then you are subject to this law. Any company with ten or more employees that operates within the State or sells products in California, must comply with the requirements of Prop 65.
  • Violation Penalties
    • The penalties for violations of Prop 65 are not insignificant: any business that violates or threatens to violate Prop 65 is liable for a civil penalty not to exceed $2,500 per day for each violation. You can also be liable for attorney and expert witness fees.

Necessary Actions

If a business sells in California a product containing a substance or substances that are on the Prop 65 list in excess of the de minimis level for that substance, then a "clear and reasonable" warning must be provided to the public. The same is true for environmental or workplace exposures to Prop 65 substances in California. The law allows for the warning to be provided by a variety of means, such as direct labeling of the product, posting signs at the workplace, or publishing notices in a newspaper,[1] depending on the circumstances and provided the warning is clear and reasonable. If you elect to label your product with the warning, then the obligation to do so is on the producer or packager rather than on the retail vendor (except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question). If the warning is on a label, it must be conspicuous enough to be read and understood by the consumer.

  • Can a retail outlet provide a store-wide warning in lieu of the producer placing a warning on its label?
    • The short answer is yes, as long as the retailer does it correctly. Even if the producer or packager does not provide a warning label on its product's packaging, according to Prop 65 the warning requirements can still be satisfied if the retail outlet provides a sufficiently descriptive warning through shelf-labeling, signs, menus, or a combination thereof. So, for example, the retailer can post signage to the effect that:
      • "WARNING: The following products contain a chemical known to the State of California to cause cancer [OR to cause birth defects or other reproductive harm]: Product X, Product Y, and Product Z."
  • To satisfy Prop 65, each product sold at that retailer containing a Prop 65 chemical is to be listed by name. We discussed this issue with the California Attorney General's office and were advised that such a sign needs to be in close proximity to the identified product(s), applying a reasonableness standard, in order for it to satisfy the law as it relates to those product(s). The representative from the AG's office said that the sign has to be close enough that it would be reasonable to expect the consumer to see it when making a decision whether to purchase the product.
  • Any member of The Vision Council who elects to rely on retail store signage in lieu of actually labeling their products must be mindful that they will be ultimately responsible if the retailer's signage falls short of any Prop 65 requirements or is not conspicuous enough.


Download and listen to the audio from the April 2016 presentations and Q&A (large MP3 file, long run time)

Download the April 2016 combined presentation files from Vision Expo East (pdf)

Download the December 2015 webinar presentation on BpA and Prop 65 (pdf)

Download the February 2016 Guide to California Prop 65 for Ophthalmic Suppliers (pdf)

Download the Proposition 65 – BpA Labeling Guide (pdf)

Proposition 65 Website

Of Special Interest to Optical Laboratories: "California Proposition 65 - The Safe Drinking Water and Toxic Enforcement Act of 1986 Guide for Optical Laboratories"

This version of The Vision Council's guidance document on Prop 65 is intended for the Optical Laboratories Division members, and in particular those labs physically located in California. This document is similar to, and incorporates sections of, another guidance document from The Vision Council on Prop 65 compliance written for its members involved in manufacturing and distributing eyewear and sunwear products in and into California. This guide, however, includes content germane to optical laboratories.


Members with questions on this topic should contact Rick VanArnam, The Vision Council's regulatory affairs counsel, at or 212.725.0200, or Jason McElvaney, government and regulatory affairs liaison, at or 512.751.5555.