California's Proposition 65 requires a business to warn people before it knowingly exposes them to a chemical on the state's list, about 900 chemicals known to cause cancer, birth defects or other reproductive harm, unless the exposure is low enough to pose no significant risk. For food, three things decide whether it reaches you. A business with fewer than 10 employees isn't covered at all. A chemical that's naturally occurring in a food isn't an exposure, if you can show it. And the warning falls on the manufacturer, who can put it on the label or send a written notice to each retailer every year. If you warn, the rules give safe harbor wording: a boxed "WARNING:" on the label, a short form that names the chemical, a special wording for acrylamide, and a warning before checkout online. In the example below, an Oregon kettle chip maker with 14 employees works through it for its California stores. Below are the rules, the wording, the example, and a free checklist.
The short version
- Prop 65 covers products sold in California, including food, that expose people to a listed chemical.
- Businesses with fewer than 10 employees aren't covered.
- A chemical naturally occurring in a food isn't an exposure, to the extent you can show it.
- The manufacturer warns: on the label, or by a written notice to each retailer's authorized agent, renewed every year.
- On a label, the warning is set off from other information and enclosed in a box, starting with "WARNING:" in bold capitals.
- A short form on the label names the chemical and is at least 6-point type.
- Acrylamide, which forms when food is fried, baked or roasted at high heat, has its own wording.
- Online, the warning shows on the product page, behind a "WARNING" link there, or before the purchase is complete.
- Penalties reach $2,500 per violation per day.
- TaroStack keeps each lot's test results and which California customers got it. More below.
The rules
| Rule | What the law and regulations say |
|---|---|
| Who's covered | A "person in the course of doing business"; that excludes anyone employing fewer than 10 employees |
| When to warn | Before knowingly exposing someone to a listed chemical, unless the exposure is low enough |
| Naturally occurring | Eating a food isn't an exposure to a chemical naturally occurring in it, if you can show it |
| Who warns | The manufacturer, producer, packager, importer, supplier or distributor |
| How | A warning on the label or labeling, or a written notice to the retailer's authorized agent |
| The notice | Names the product, includes the warning materials, has its receipt confirmed, and is renewed each year |
| Changes | A new notice within 90 days when the chemical or the harm in the warning changes |
| The retailer | Places and maintains the warning materials it receives |
| Enforcement | The Attorney General, district attorneys, some city attorneys, and private individuals |
The employee rule is Health and Safety Code 25249.11. The warning rules are 27 CCR 25600 to 25607.2, in OEHHA's unofficial copy of the regulations; the naturally occurring rule is section 25501. OEHHA's About Proposition 65 explains the list and the penalties. The regulations say plainly that they don't decide whether a warning is required for a given exposure; that's a question for your lab and your attorney. This is general information, not legal advice.
The wording
The safe harbor food warning, 27 CCR 25607.2, starts with "WARNING:", "CA WARNING:" or "CALIFORNIA WARNING:" in bold capitals:
| For | The words after "WARNING:" |
|---|---|
| Cancer | "Consuming this product can expose you to chemicals including [chemical], which is known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/food." |
| Reproductive harm | The same, ending "to cause birth defects or other reproductive harm." |
| Short form, cancer | "Cancer risk from exposure to [chemical]. See www.P65Warnings.ca.gov/food." |
| Short form, reproductive harm | "Risk of reproductive harm from exposure to [chemical]. See www.P65Warnings.ca.gov/food." |
| Acrylamide | "Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide." |
For one chemical, "chemicals including" can be left out. A short form goes only on the label, in type no smaller than 6-point. If the label has consumer information in another language, the warning goes in that language too. How the rest of the label works is in food labeling requirements for small business.
An example: an Oregon kettle chip maker
Hood River Kettle, a made-up chip maker in Hood River, Oregon, I use in these examples, has 14 employees and sells into California through a distributor, a co-op, a grocery store and its own website:
| Question | Hood River Kettle's answer |
|---|---|
| Employees | 14, so the under-10 exclusion doesn't apply |
| Sold in California | Yes: 30 stores through the distributor, plus the co-op, the grocery store and online orders |
| A listed chemical | Acrylamide, which forms when potatoes are fried |
| Naturally occurring? | No: it forms when the chips are cooked |
| Who warns | Hood River Kettle, as the manufacturer |
| How | On its attorney's advice, the acrylamide wording in a box on the back of the bag |
| Online | A "WARNING" link on each chip page of its website |
Its baked apple chips have no listed chemical the company knows of, so they're on its supplier and lab list to check. Its distributor asked for proof, so Hood River Kettle keeps each lot's acrylamide result from its lab with the lot, the way certificate of analysis tracking keeps lab reports, and keeps a log of the notices it sent before the boxed bags reached the shelves. What California stores ask of a supplier is in selling to grocery stores requirements.
Get the checklist
Download the Prop 65 food warning checklist. Three sheets: does it reach you, each product with your employee count, California sales, the listed chemical and whether it's naturally occurring; warning wording, which builds the safe harbor wording from the chemical and what it's listed for, full or short; and a log of written notices to retailers with each renewal date, red when overdue. It's an ordinary Excel file with no macros, and it works in Google Sheets, LibreOffice and Numbers.
Where this stops working
A warning decision rests on test results by lot, and a written notice rests on knowing which retailers got which products, renewed every year. When a buyer asks for proof, or a chemical changes, the answer has to come from records.
How TaroStack does it
TaroStack keeps each lot's test results and which California customers got it.
Results on the lot. Fields of your own on the batch record hold the lab's acrylamide result and the report number, so each lot carries its own proof.
Which customers got it. Each distributor, co-op and store is a customer, and each order records the lots it got, so one recall report shows every customer a lot reached.
Lots on the bag. Each batch gets a lot with its production and best-before dates, and lot labels print with it, so a bag on a California shelf leads back to its batch.
| The job | Spreadsheet | In TaroStack |
|---|---|---|
| A lot's test result | A folder of lab reports | A field on the batch record |
| Which stores got a lot | Searched invoice by invoice | One recall report |
| A bag back to its batch | The lot code, then the paperwork | The lot, its batch and its orders |
Lots, batches, orders and lot labels are on every plan, from $49 a month. The first 30 days are free, with no credit card. If you'd like a hand setting up, ask, and we'll do it with you.