Advertising Law Tool Kit - Fourteenth Edition - 2026

Venable / 69 68 / Venable Proposition 65 Companies selling products into California, whether directly or indirectly through distributors or third-party resellers, should consider the best practices listed below to help avoid litigation and limit their liability. Help avoid litigation: • Conduct a risk management audit of products to determine the implications of Prop 65 requirements. • Assess and routinely test products to determine whether they contain any chemicals on the Prop 65 List. This includes impurities that are not knowingly added to the product. Work with experienced attorneys or consultants to devise targeted and efficient testing strategies with certified labs, which can qualify for a codified defense to Prop. 65 if challenged. • If a product contains a listed chemical, determine whether compliance can be achieved by demonstrating that the level of exposure is below safe harbor levels (if any) or by demonstrating that the chemical is naturally occurring (a very difficult standard). If not, provide a compliant warning. Limit liability: • Ensure Prop 65 warnings comply with the newest requirements, including those that went into effect in August 2018 and January 2025, which include specific requirements for internet and catalog warnings and the latest on short-form warnings. • Monitor trends in Prop 65 enforcement and work with counsel who know the enforcers. • Monitor the Prop 65 List for newly listed chemicals and calendar compliance dates. Respond to notices of violation: • Prop 65 requires plaintiffs to issue a “notice of violation” before filing suit. Engage counsel to respond to and seek to resolve the issues in the notice promptly, as pre-litigation negotiations often yield better settlements for alleged violators. • The law allows private persons or organizations to bring actions against alleged violators on behalf of the “general public.” The potential costs for violations of Prop 65 are high—with penalties of up to $2,500 per day, per violation—and plaintiffs are entitled to reimbursement of attorneys’ fees. Ari N. Rothman anrothman@Venable.com California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65 or Prop 65, remains a real threat to companies marketing consumer products, including foods, dietary supplements, and cosmetics. Under the law, if a product exposes California consumers to any of the 900+ chemicals on the Prop 65 List at levels above the safe harbor level (if any), the marketer must warn consumers that the product contains a chemical that the state has determined may cause cancer, birth defects, and/or reproductive harm (based on the listing). Failure to comply with Prop 65 can result in high potential penalties for marketers. Claudia A. Lewis calewis@Venable.com Todd A. Harrison taharrison@Venable.com Caitlin C. Blanche cblanche@Venable.com Daniel S. Silverman dssilverman@Venable.com