California Proposition 65: The Private Enforcement Machine

Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986) requires businesses with 10 or more employees to warn Californians before exposing them to chemicals on OEHHA's list that are known to cause cancer, birth defects, or reproductive harm. The list currently contains roughly 900 chemicals. Violation means failing to provide a warning when the chemical exposure exceeds OEHHA's safe harbor levels, or selling a product with a chemical that has no safe harbor level at any detectable amount.

Enforcement is primarily private. A plaintiff (often a plaintiff attorney or advocacy group) sends a 60-Day Notice of Violation to the business and the California Attorney General. If the business doesn't settle or cure within 60 days, a lawsuit can be filed. The business pays civil penalties (maximum $2,500 per day per violation), plus plaintiff's attorney fees, plus injunctive relief. 87% of settlement dollar volume goes to attorney fees, not to any regulatory agency or harmed party.

Businesses with 10 or more employees anywhere in the world must comply with Prop 65. California employees only, US employees only, neither is correct. A brand with 8 US employees and 5 contractors in another country may exceed 10. The 10-employee exemption protects only the small business itself, it does not insulate from indemnification requirements imposed by retailers and distributors with more than 10 employees.

The chain-of-commerce liability is real. If your product is sold through a distributor, Faire, Amazon, Target, or any retailer with more than 10 employees who sells into California, those parties need a Prop 65 warning on the product, and they will pass non-compliance liability back to you through vendor agreements. Even sub-10-employee brands should treat Prop 65 compliance as a commercial necessity, not just a legal one.

For online sales into California, the warning must appear on the product display page "clearly and prominently", not in a footer, not in terms of service, not behind a general "Safety Information" link. Either the full warning text on the product page or a clearly labeled "CA Proposition 65 Warning" link that opens to the warning are accepted approaches. OEHHA's December 2024 Final Statement of Reasons also takes the position that a warning must appear on or with the delivered product, not online only. This means branded packaging, an insert, or a label on the product itself should carry the warning for any product shipped to a California address.

The enforcement sequence: a private plaintiff (frequently a "citizen enforcer" working with a plaintiff attorney) purchases the product, has it tested, and files a 60-Day Notice of Violation with the California AG's Office and the business. The notice is posted publicly on the AG's website. The business then has 60 days to provide a settlement, cure the violation, or prepare for litigation.

The most active plaintiffs in 2025 include the Center for Environmental Health (CEH), Consumer Advocacy Group (Yeroushalmi law firm), As You Sow, Environmental Research Center, and numerous individual citizen-enforcers. CEH alone filed 252 BPS-related notices in July 2025. The geographic concentration of counsel in CA means brands in any state selling into California are exposed.

Build your testing sequence around litigation risk, not catalog alphabetical order. Ceramic glazed products for food contact, vinyl accessories and bags, jewelry with metallic components, and any product containing PFAS finishes are your first priorities. XRF (X-ray fluorescence) handheld screening at $50–$200 per sample is cost-effective for initial triage, it identifies problematic metals in surface coatings quickly, though it does not provide the accredited test report needed for a safe harbor defense. Full accredited testing follows for any XRF-flagged SKU.

Every major US retailer's vendor agreement requires Prop 65 compliance for products sold into California distribution. Amazon's Product Safety and Compliance policy requires Prop 65 warnings where applicable and allows Amazon to remove listings without notice. Target's vendor compliance manual requires that the brand provides warning language for inclusion in product detail pages and on-product labels. Faire's terms require compliance with applicable local regulations and enable delisting of non-compliant products.

Chargebacks for Prop 65 non-compliance are less common than for CPSIA violations but increasingly used by larger retailers. The primary retail consequence is listing removal, which for a Faire brand means losing organic placement and potentially a Top Shop status that took months to build.