Earlier this year, California sent Prop 65 notices to more than 700 California-based cannabis businesses.
This means cannabis businesses are required to place a warning on all products that contain chemicals known to cause cancer or reproductive harm and could be exposed to liability for failing to warn. In this case, California deems marijuana smoke a carcinogen like tobacco smoke.
Legal action to enforce Prop 65 can be brought by the government or by private attorneys that can “act in the public interest.” It’s the private attorneys the industry should be worried about.
In 1986, California voters approved an initiative to address their growing concerns about exposure to toxic chemicals. That initiative became the Safe Drinking Water and Toxic Enforcement Act of 1986, better known by its original name: Proposition 65. Prop 65 requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. This list, which must be updated at least once a year, has grown to include approximately 800 chemicals since it was first published in 1987.
Proposition 65 requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment. By providing this information, the State believes Prop 65 enables Californians to make informed decisions about protecting themselves from exposure to these chemicals. Prop 65 also prohibits California businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.
Businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical. This warning can be given by a variety of means, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. Once a chemical is listed, businesses have 12 months to comply with warning requirements.
Prop 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is listed, businesses have 20 months to comply with the discharge prohibition.
Businesses with less than 10 employees and government agencies are exempt from Prop 65’s warning requirements and prohibition on discharges into drinking water sources. Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or birth defects or other reproductive harm.