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While the residents of liberal states like California, New York, and New Jersey are always on the lookout for the next anti-gun laws further restricting their Second Amendment rights, sometimes the most onerous laws come out of left field.
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What is Proposition 65?
To understand the current situation, it’s helpful to have a little background into Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, and commonly referred to as Prop 65. The proposition was a California ballot initiative voted on and passed over 30 years ago and is still hassling citizens to this very day. There have been two other ballot measures also listed as “Proposition 65” since then, but neither were passed during their respective elections and so whenever someone refers to “Prop 65” in California, they are talking about the one from way back in 1986. So what’s the big deal? Like all propositions, Prop 65 has a very nice-sounding title. Who wouldn’t want safe drinking water and have toxic chemical enforcement? The goal of the proposition itself was to reduce or eliminate exposure to chemicals and toxic substances that may cause cancer and birth defects. In order to achieve this goal, any substance that has a 1 in 100,000 chance of causing cancer over a 70-year period or be known by the State of California to cause birth defects is put on a list, and products containing chemicals from the list require a warning to consumers. Even if the federal government has not deemed a chemical to be dangerous, as long as the substance is on the California list, it falls under the Prop 65 rules.
So What?
What makes Prop 65 such a big deal is that it affects ALL products sold in California, regardless of industry. Products ranging from painted baby cribs to laptops made with certain types of metals, to vases using chemicals in the manufacturing process, all have to provide a Prop 65 warning to consumers. Fortunately, at least until recently, the warning that was required was pretty generic, and essentially just told consumers “Hey, there are some chemicals here you should be careful about!” The main issue for retailers and manufacturers was that the list contained over 850 chemicals and was constantly being updated.Warning!
As annoying and expensive as that was, the warnings were just basically generic labels that had to be put on products, even ones that MAY have chemicals on the Prop 65 list. Unfortunately for manufacturers, California decided to put in additional requirements to the Prop 65 warnings. To protect the children! It is these new regulations that went into effect in September 2018 that is now causing massive headaches for retailers and manufacturers of all products sold in California, including manufacturers in the firearms industry. Under the new Prop 65 rules, retailers and manufacturers have to follow updated warning formats, which list at least one of the chemicals interacting with the product would expose a consumer to, the internet address of the Prop 65 warning site, and a yellow warning symbol.
Not My Problem
It’s not all bad news though. Prop 65 has a way out for manufacturers, by allowing them to shift the responsibility to retailers instead, as long as there is a warning provided to consumers at some point in the sale. Since the manufacturers are the ones actually making the products, it would make more sense for them to be the ones to test the products and figure out what chemicals are being used. If they shift the Prop 65 warning responsibility to their retailers, those retailers would need to examine the products themselves and figure out what chemicals were used in the manufacturing process to be able to figure out if any chemicals along the process are part of the Prop 65 list. Even with most manufacturers handling the new Prop 65 compliance requirements themselves, the retailers are still affected, since the manufacturers cannot ship any of the products to be sold in California until they finish their tests and come up with the new warning labels. For customers in California, this means waiting for manufacturers to come up with the new warnings, and for retailers to stock these products before they can actually buy them.
Why Not Just Ignore It?
Technically, the new regulations only provide a suggested way to give warning to consumers, so retailers and manufacturers are not legally required to provide the warning labels in any specific way. If they DO provide the warnings listing out the name of the chemicals and the Prop 65 website, however, then they will be given “safe harbor”, which means they are effectively protected from lawsuits that claim the companies did not provide adequate warning. It doesn’t take a genius to figure out that following these warning requirements is the safest way to stay out of the crosshairs of ambulance chasers looking to make a quick buck. Of course, it also means companies will have to spend time and money to make sure all of their products have the appropriate new warning labels before they are sold in the state.A Degree in Armchair Law
With the new requirements just kicking into effect, lots of companies are still trying to catch up and make sure they meet the new Prop 65 requirements. This has led to some companies holding off on sales to California customers completely, at least temporarily. Unfortunately, this has also led some of our fellow California residents to try and come up with guesses on why their orders are getting canceled. Internet forums aren’t exactly the best place to get your information, and with new regulations being put into effect, everyone and their uncles seem to have their own legal opinions on what it means. For those of you in California, and everyone else looking with pity on the Californians, know that the only thing that changes with the new Prop 65 requirements is that the warnings now need to state the exact chemical that is “known to cause cancer or birth defects”. There are no issues with interstate commerce, the commerce clause, or Santa Claus. The only issue is retailers and manufacturers making sure they have the proper Prop 65 warning on their product pages and packaging to list out the exact chemicals from the Prop 65 list that are contained in their products. If the companies do not have the new warnings in place, then their lawyers may (hopefully) be telling them to hold off on selling products in California until the warnings can be provided.
What One Company (Palmetto State Armory) Does
This is from PSA…but be aware that Palmetto State Armory does not provide legal advice. Please consult with your own legal counsel if you have any questions about your responsibilities under Proposition 65.-
All outgoing product that may/may not fall under the Prop 65 guidelines must be labeled with the short form of the safe harbor warning which looks something like the following:
WARNING: Cancer and/or reproductive harm-www.P65Warnings.ca.gov
- We notified our dealers in California. A letter was sent and a sales order signed when they place an order so they understand the regulations and that the warning notice must be posted for their customers to see. This would include a sign or shelf tag.
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Our website had to be updated to include the long form of the warning for all potential customers to see. The long form required checking SDS sheets for chemicals used in production, wipe sampling to test for residues of said chemicals on the firearm, and changing chemicals that might have something in their chemical makeup that is listed on the OEHHA list of (approx. 800) “harmful toxins”. This warning is provided not because any firearm would provide a significant risk level according to the OEHHA, but because not providing the warning is much worse. The long form of the Prop 65 warning looks something like the following:
WARNING: This product can expose you to the chemical Benzene, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.
- Palmetto State Armory also added all Prop 65 notices that we received from other manufacturers to our website. You can find several if you flip through product pages.
A Tiny Bit of Good News
There has to be some, right? Right?? Luckily, yes. Products that were made before September 2018 only need to follow the rules that were in place at that time. So if you are buying something that was made before then, you are in good shape, and retailers can continue to sell their goods just like they did before. Online retailers may be hesitant to sell anything with the old warnings just to be on the safe side, but in most cases, your local stores with older items should be just fine. Some more good news: not everyone is affected by the new regulations. Like we mentioned before, Prop 65 was not intended to target the firearm industry specifically, but ALL industries in California. This means your local mom and pop store selling Christmas ornaments and lawn gnomes would have to follow the rules as well. BUT (and we like big buts), because the State didn’t want to completely destroy ALL business in California, companies with 9 or fewer employees are exempt from the new Prop 65 rules. As long as your favorite Etsy seller doesn’t hire 9 other people to help out with the business, selling to California will not require any Prop 65 warning labels. The moment a company has 10 or more employees, though, they’d better be prepared to shell out the big bucks to test and find out exactly what chemicals are going into their products in order to come up with Prop 65-compliant warning labels. If they’re lucky, the manufacturers will have done the heavy lifting for them and told them what chemicals to list on the Prop 65 warnings.
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So why the hell does practically every gun part and accessory come with a Prop 65 warning? For example, you see it when you buy a small, all-aluminum handstop that has a steel screw and fitting to hold it in place.
I had this on my cabelas gun bag.......
not sure why
I can't say I am a fan of PSA (Palmetto), I had a couple of very bad experiences with them and would never recommend them now.
On these Prop 65 designations what is going on is two things: a) a legit classification/notification with some of the listed chemicals/compounds b) a massive windfall effectively lobbied for by trial attorneys since this establishes a long-tail gravy train for future suits. It is the same as the near successful designating coffee as carcinogenic in California (google it) this was argued by firms that specializing in suing over this. Prop 65 was funded by such firms. They create as fronts what looks like environmental groups/heath advocacy groups, but these are fronts strictly to lobby. The law firms even are effectively taxpayer subsidized since they "donate" to the 501(c)3 "charities" they have created as fronts. Their tax deduction from giving to these "charitable" "health advocacy" is paid for by all the taxpayers, which then lobby for the overbroad classification which sets up future lawsuits they can mak a lot of money from
Now that does not mean that prop 65 is totally off base. We do know industry has continued to use harmful chemicals with no way for the consumer public to know, and that they also have lobbied to avoid disclosure. This has happened with literally thousands of compounds. The tobacco industry successfully fought the known science for decades by pouring money into the political process. There was evidence lead in gasoline and home paint was quite harmful for decades before it was reduced as well and a lot of money was used to delay that. There are lots of less well known compounds that are all over our homes that were legal and whihc we now know with exposure beginning in infancy and having decades of exposure will cause serious health problems amount a lot of people .
Smart people need to argue for the middle ground. Too much regulation on this is bad, and a warning label on everything just makes people ignore warning labels.
I was born and raised in California (Los Angeles). And honestly, it's not as bad as it seems. Maybe it seems like that to me because I am used to it but at the end of the day I still managed to exercise my 2A rights. The only thing I can say is not everybody there is as anti 2A as you think. Everyone that I have met for the most part has been supportive of my 2A views after explaining it to them. Cali is just a bad case of monkey see monkey do. Also misinformed....