Oct 5, 2021 · 4 min read
Previously, we wrote about a California law, AB 2762, which bans certain ingredients from being used in cosmetics. To wrap up this two-part series on regulations specific to California, we would now like to look closely at a different law, called Proposition 65. This law is relevant to beauty brands because, depending on the cosmetic ingredients used, manufacturers and brands may have to ensure certain information is communicated to consumers.
This overview isn’t meant to be legal advice or cover all the details that may be relevant, just to give you an idea of what you’re dealing with. For detailed information, ask the state or a qualified regulatory consultant.
In the past several years, American consumers have noticed that many products bought online now carry warnings that they may cause cancer or harm reproductive health. The warnings mention California.
This all has to do with Proposition 65, a law passed in a 1986 referendum. That year, voters approved Prop 65 by a nearly two-to-one margin. Ever since then, California businesses have had to warn people when they may be exposed to any potential cancer-causing chemicals. Because many chemicals may theoretically be carcinogenic or cause reproductive problems, these warnings are common in California.
The warnings have become more common lately on the Internet, too. Businesses that sell in California have become cautious about accidentally violating the law. Some businesses outside the state have even stopped shipping products to California because they don’t want to do anything illegal, even by accident.
Many businesses, though, conclude that California represents too big a slice of the American economy to ignore. They issue the warnings, to be safe. This may be confusing for consumers, though, as well as for the online retailers themselves.
The California Office of Environmental Health Hazard Assessment (OEHHA) states:
Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. These chemicals can be in the products that Californians purchase, in their homes or workplaces, or that are released into the environment. By requiring that this information be provided, Proposition 65 enables Californians to make informed decisions about their exposures to these chemicals
Proposition 65 also prohibits California businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.
Every year, the state governor’s office publishes a detailed list of chemicals known to the state to cause cancer or reproductive toxicity. The current list is available here. It is up to beauty brands to determine if cosmetic ingredients expose consumers to any of these chemicals and to issue warnings accordingly.
The state places the responsibility on business owners to comply with Prop 65. That means you, the Cosmetics Creator, have to determine whether any ingredients in your products require the warning.
In response to the question “As a business, how do I know if I need to provide a Proposition 65 warning?” the OEHHA’s website says:
Using your knowledge of your business operations and the chemicals you use, review the Proposition 65 list to determine whether your operations or products are likely to expose individuals to any listed chemicals. Depending on the level of exposure, you may be required to provide a warning for those exposures.
For many chemicals, the Proposition 65 list provides “safe harbor levels.” If a business uses only a little bit of a listed chemical, but consumers will be exposed to amounts below the safe harbor level, the business does not need to provide a warning. If the exposure level is likely to exceed the safe harbor level, the business needs to warn consumers. This level is different for each chemical.
The OEHHA says:
Although a business has the burden of proving a warning is not required, you are discouraged from providing a warning that is not necessary and instead should consider consulting a qualified professional if you believe exposure to a listed chemical may not require a Proposition 65 warning.
In other words, the state doesn’t want businesses to just label everything. That would lead to people seeing so many warnings that they may disregard necessary ones. It’s up to the business to prove whether or not a warning is required, but the business should actually do that work. It should not just put warnings on everything to be on the safe side.
The OEHHA says you should consult a professional if you think you may not need to warn consumers about a listed chemical. So analyze your cosmetic ingredients carefully against the list, and make sure you’re in the clear; if there’s any doubt, call a professional.
The safest way to make sure you’re following the law is to consult with a qualified regulatory specialist, whose job is helping beauty brands comply with the law. Investing this time and effort upfront can lead to significant savings and fewer issues down the road.
On Goldn, Cosmetics Creators can find and collaborate with consultants whose specific job is to help navigate tricky regulations. Sign up now to learn more and try it out!