California’s Prop. 65 – The law consumers may ignore, but cannabis businesses shouldn’t

Written by: Sedina L. Banks (Greenberg Glusker LLP)
Published: June 23, 2022

You enter a parking garage, amusement park, or restaurant in California, or purchase furniture, clothing, or food. All of these disparate activities have one thing in common – you’re likely to see a California Proposition 65 (Prop. 65) warning. While the intent behind the law was to let Californians know of the potential health risks from the products they use and places they visit, these warnings have become so ubiquitous that many individuals simply ignore them. However, one group should not ignore Prop. 65 – the businesses subject to the law, including the cannabis industry.  

California’s Prop. 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that the State has determined may cause cancer or reproductive harm. Generally, this warning includes a warning symbol (the yellow triangle with a black exclamation point inside), followed by the word “WARNING” in bold print, and warning language telling Californians about exposure to chemicals known to the State of California to cause cancer or reproductive harm. Currently, there are more than 900 chemicals listed as Prop. 65 chemicals, including cannabis smoke (listed for cancer and developmental harm) and delta-9-THC (listed for developmental harm).

Importantly, unlike other chemicals on the Prop. 65 list, there are no “safe harbor” levels for cannabis smoke or delta-9-THC. What this means is even if a product only has a minimal amount of delta-9-THC, there needs to be a Prop. 65 warning. As a result, cannabis businesses should have appropriate Prop. 65 warnings now, but the type of Prop. 65 warning required for cannabis businesses may soon change.

Last year, the California Office of Health Hazard Assessment (OEHHA), which administers Prop. 65, proposed specific tailored warning language for retail products that can expose consumers to cannabis smoke or delta-9-THC via inhalation, ingestion (edibles), or dermal application, and for environmental exposures to cannabis or vaping or dabbing of delta-9-THC.  These proposed changes have undergone extensive public comment and further revision, with the last round of public comment ending on June 6, 2022. Once adopted, following a grace period for compliance, cannabis businesses will have to comply with these new warning requirements to avail themselves of Prop. 65’s safe harbor warning language.

The proposed warning language departs significantly from the general Prop. 65 warning language that cannabis businesses are likely currently using. One of the biggest differences is OEHHA’s elimination of the short-form warning for cannabis products. This means that the warning must specifically list cannabis smoke and delta-9-THC in the warning. For example, the proposed warning language for “Cannabis smoke from consumer products exposure” is:

“Smoking cannabis increases your cancer risk and during pregnancy

exposes your child to delta-9-THC and other chemicals that can affect your child’s

birthweight, behavior, and learning ability. For more information go to

www.P65Warnings.ca.gov/cannabis.”

OEHHA stated that it wanted to eliminate the short-form warning to enable “consumers [to] receive the full safe harbor warning language so that they can be made aware of the specific effects the exposures can cause to unborn children.” OEHHA also has a page on its Prop. 65 website dedicated to “Cannabis and THC Products,” specifically discussing why OEHHA considers these products to be harmful to an individual’s health or unborn children.

Once OEHHA adopts these new warning requirements businesses will have a grace period to comply, before being the target of enforcement actions for violating Prop. 65’s new warning requirements. There can be steep penalties of $2,500 per day for each violation for failing to comply with Prop. 65’s warning requirement. For businesses with a lot of products sold in California, this can really add up fast. Unlike some other laws, both the government and private parties can enforce Prop. 65. Private-party enforcement actions are common because of the monetary incentive in the form of obtaining a portion of any settlement amount.  

Cannabis businesses, in particular, will be an easy target for these suits because of the lack of safe harbor levels for cannabis smoke and delta-9-THC. As a result, enforcers will be able to easily ascertain whether a cannabis product has a compliant Prop. 65 warning. Cannabis businesses should be aware of these changes to ensure timely compliance with Prop. 65 and avoid being a target of costly enforcement actions. The best strategy to avoid enforcement actions is always compliance with the law in the first instance.