Understanding California Proposition 65 and Its Impact on Firearms Businesses

Introduction

California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a complex regulation aimed at protecting consumers from exposure to harmful chemicals. For businesses in the firearms industry—manufacturers, distributors, and retailers—compliance with Proposition 65 is not just a legal obligation but a critical step to avoid costly litigation. The chemicals commonly used in firearms, parts, and accessories make this industry particularly vulnerable to Proposition 65 enforcement. This article explores the formation of Proposition 65, its revisions, current warning label requirements, potential civil and criminal liabilities, and its specific applicability to the firearms sector, with a focus on why The Davis Law Firm is your essential partner in navigating these challenges.

Formation of Proposition 65

Proposition 65 was enacted by California voters in November 1986 through a ballot initiative, passing with 63% approval. Driven by concerns over toxic chemical exposure in drinking water and consumer products, the law sought to inform consumers about health risks. Administered by the California Office of Environmental Health Hazard Assessment (OEHHA), Proposition 65 mandates that businesses provide “clear and reasonable” warnings if their products or premises expose individuals to chemicals known to cause cancer, birth defects, or reproductive harm. The initial list of regulated chemicals, published in 1987, has expanded to over 900 substances, with OEHHA updating it annually.

Revisions to Proposition 65

Proposition 65 has evolved significantly to clarify compliance and strengthen consumer protections. Key revisions include:

• 1990s Clarifications: Early amendments defined “clear and reasonable” warnings and introduced safe harbor levels—exposure thresholds below which warnings are not required. Businesses could avoid warnings by proving exposures fell within these limits.
• 2016 Warning Label Overhaul: Effective August 30, 2018, OEHHA implemented stricter warning requirements, mandating specific language, including the word “WARNING” in bold, identification of at least one chemical, and a pictogram (a yellow triangle with an exclamation mark). Warnings must also link to OEHHA’s website (www.P65Warnings.ca.gov).
• 2020 Tailored Warnings: OEHHA introduced industry-specific “tailored” warnings, allowing customized labels for certain products, though general warnings remain standard for most sectors.
• Ongoing Updates: OEHHA continuously revises the chemical list and safe harbor levels, requiring businesses to stay proactive to ensure compliance.

These changes underscore the need for expert legal guidance to keep pace with Proposition 65’s evolving requirements.

Current Scope of Warning Label Requirements

Proposition 65 applies to businesses with 10 or more employees operating in California or selling products there. It covers exposures from consumer products, workplaces, and environmental sources. Key requirements include:

• Warning Triggers: Businesses must provide warnings if their products knowingly and intentionally expose individuals to listed chemicals above safe harbor levels, unless they can demonstrate “no significant risk.”
• Warning Content: Labels must include:
  • The word “WARNING” in bold.
  • Identification of at least one chemical causing the exposure.
  • A statement of risk (e.g., “This product can expose you to chemicals including [chemical name], which is known to the State of California to cause cancer.”).
  • A link to www.P65Warnings.ca.gov.
• Delivery Methods: Warnings can appear on product labels, packaging, shelf signs, or websites for online sales. In firearms retail, warnings are often posted at the point of sale.
• Exemptions: Businesses are exempt if exposures are below safe harbor levels, if they have fewer than 10 employees, or if federal law preempts Proposition 65 requirements.

Compliance demands meticulous attention to detail, making legal expertise from firms like The Davis Law Firm invaluable.

Potential for Civil and Criminal Liability

Non-compliance with Proposition 65 carries severe consequences:

• Civil Penalties: Violators face fines of up to $2,500 per day, per violation. Private citizens, often called “bounty hunters,” can file lawsuits to enforce compliance, seeking settlements that include penalties and attorney’s fees. These citizen suits are a primary enforcement mechanism, particularly targeting industries like firearms.
• Criminal Liability: Though rare, knowing and intentional violations (e.g., deliberately concealing exposures) can result in criminal charges, including misdemeanor penalties or jail time.
• Litigation Costs: Defending against Proposition 65 lawsuits is expensive, with legal fees often surpassing settlement amounts, even for businesses that prevail.

Proactive compliance, guided by experienced counsel, is the best defense against these risks.

Applicability to Firearms, Parts, and Accessories

Firearms, parts, and accessories are subject to Proposition 65 due to chemicals used in their manufacturing, such as lead, phthalates, and solvents. Common exposure scenarios include:

• Lead: Present in ammunition, primers, and metal components, lead is a Proposition 65-listed carcinogen and reproductive toxicant. Handling firearms or shooting at ranges can lead to dermal or inhalation exposure.
• Phthalates: Found in plastic grips, holsters, or coatings, phthalates like DEHP are linked to reproductive harm.
• Solvents and Coatings: Chemicals like toluene or benzene, used in cleaning solutions or finishes, may require warnings if present in significant amounts.

Firearms businesses must evaluate whether their products exceed safe harbor levels, such as OEHHA’s 0.5 micrograms per day threshold for lead (reproductive toxicity). If exceeded, warnings are mandatory. Retailers often use general warnings at stores or online, while manufacturers may include warnings on packaging or manuals. The Davis Law Firm can assist in assessing these exposures and implementing compliant warning systems.

Challenges for the Firearms Industry

The firearms industry faces unique challenges under Proposition 65:

• Complex Supply Chains: Tracing chemicals across global supply chains is a daunting task, requiring rigorous testing and documentation.
• Consumer Perception: Warning labels may alarm customers, who may misinterpret them as indicating unsafe or defective products.
• Political Targeting: California’s political climate, often perceived as hostile to Second Amendment rights, makes the firearms industry a special target for Proposition 65 lawsuits. The state’s progressive policies and stringent gun control measures amplify scrutiny of firearms businesses, with plaintiffs leveraging Proposition 65 to challenge the industry. These lawsuits are not just about chemical compliance but can serve as a tool to burden Second Amendment-related businesses with legal and financial pressures.
• Litigation Risks: The firearms sector is a frequent target for lawsuits, and Prop 65 is no different.

These challenges highlight the need for specialized legal support to navigate both regulatory and political complexities.

Conclusion

California’s Proposition 65 is a formidable challenge for the firearms industry, with its evolving requirements, significant liabilities, and heightened scrutiny in a politically charged environment. Businesses involved in manufacturing, distributing, or selling firearms, parts, or accessories must prioritize compliance to avoid costly penalties, lawsuits, and reputational damage. The Davis Law Firm, with its deep expertise in California’s firearms regulations and Proposition 65 compliance, is uniquely positioned to protect your business. Don’t leave your company vulnerable to “bounty hunter” lawsuits or political targeting—contact The Davis Law Firm today at calgunlawyers.com to safeguard your operations and ensure compliance with confidence.