Understanding California Proposition 65
If you've seen a California Proposition 65 warning on one of our chocolate products, you may have questions about what it means and why it is there. It might even give you pause about the product.
At Health HAC, we believe our customers deserve clear and useful information about the products they purchase. This page explains Proposition 65, why it can apply to chocolate and cacao products, why Health HAC provides the warning, and our concerns about the way the law can be enforced.
TL;DR Version
- Prop 65 is a California law to protect citizens against chemical polluters. Learn More About Prop 65.
- Chemicals/compounds which can naturally occur may fall under this law. See what Google says for cacao.
- The warning complies with California Prop 65 requirements when selling to California residents.
What Is Proposition 65?
Proposition 65 is the common name for California's Safe Drinking Water and Toxic Enforcement Act of 1986. It is a well-intentioned, California law that requires businesses to provide warnings about certain exposures to chemicals that California has determined may cause cancer, birth defects, or other reproductive harm. It was a grass-roots effort to force compaines, who were knowingly dumping harmful pollutants into the environment in California, to take accountability and help keep the environment free from dangerous chemicals.
California maintains a Proposition 65 list containing hundreds of chemicals. The list includes both synthetic substances and chemicals that can occur naturally in foods, the environment, and agricultural products.
Proposition 65 is administered by California's Office of Environmental Health Hazard Assessment (OEHHA), part of the California Environmental Protection Agency.
What Does a Proposition 65 Warning Mean?
A Proposition 65 warning means that the business providing the warning is aware of or believes that the product may expose individuals to one or more chemicals on California's Proposition 65 list.
A Proposition 65 warning does not, by itself, mean that a product is unsafe, that the product violates federal or state food-safety standards, or that consuming the product will cause cancer or reproductive harm.
Proposition 65 is an exposure-warning law. California's requirements take into account the level of exposure to a listed chemical, and the law provides circumstances in which a warning is not required because the exposure is sufficiently low.
The purpose of the warning is to provide California consumers with information about potential exposure so they can make informed decisions.
Why Can Chocolate and Cacao Products Have a Proposition 65 Warning?
Cacao is an agricultural product. Like many agricultural products, cacao can contain naturally occurring trace elements that are present in the soil and environment where it is grown.
One substance that can be relevant to cacao and chocolate products is cadmium, which is included on California's Proposition 65 list. The amount of naturally occurring cadmium in cacao can vary depending on factors including growing region and agricultural and environmental conditions.
The presence of a chemical on California's Proposition 65 list does not, by itself, determine whether a warning is required. Proposition 65 concerns exposure, and applicable requirements depend on the circumstances and level of exposure.
California's Proposition 65 regulations also recognize that chemicals can occur naturally in food. Under California's regulations, naturally occurring chemicals in food may be treated differently for Proposition 65 purposes when the applicable regulatory requirements are satisfied.
For chocolate products, the relevant Proposition 65 assessment can therefore involve the characteristics of the cacao ingredient, the concentration of a listed chemical, the amount of product consumed, and the resulting exposure.
Why Does Health HAC Provide a Proposition 65 Warning?
Health HAC provides Proposition 65 warnings for products where we determine that a warning is appropriate under California's requirements.
We do this to comply with California law and to provide California consumers with the information required by that law.
Providing a Proposition 65 warning should not be interpreted as an admission that a Health HAC product is unsafe or that the product violates applicable federal or state food-safety requirements.
It also does not mean that Health HAC believes that every amount of a listed chemical presents a significant health risk. Proposition 65 itself establishes exposure-based requirements and exemptions.
Why Don't All Chocolate Products Have the Same Warning?
Proposition 65 is a California law, so its warning requirements are specific to California.
In addition, businesses may make different compliance determinations based on their ingredients, products, testing, exposure assessments, warning methods, and other circumstances.
As a result, consumers may encounter Proposition 65 warnings on some chocolate or cacao products but not others.
The absence of a Proposition 65 warning on another product should not necessarily be interpreted as meaning that the product contains no listed chemicals. Proposition 65 is an exposure-based warning law rather than a general requirement to disclose every trace chemical that may be present in a product.
Does a Proposition 65 Warning Mean I Shouldn't Eat the Product?
A Proposition 65 warning is not a statement that a food product is unsafe to consume.
It is a warning provided under a California law concerning potential exposure to chemicals on the state's Proposition 65 list.
We encourage customers to consider Proposition 65 information alongside the ingredient list, Nutrition Facts, serving information, and other product information when making purchasing decisions.
Our Concerns About Proposition 65 Enforcement
While we support the goal of giving consumers meaningful information about potential chemical exposures, we also have concerns about the way Proposition 65 can be enforced.
California law permits certain private parties to bring Proposition 65 enforcement actions in addition to enforcement by government agencies. Private Proposition 65 actions have been brought by individuals, organizations, and law firms.
We understand the importance of consumer protection and the value of giving consumers information about products they purchase. However, we believe there is an important distinction between informing consumers about potential exposures and creating an environment in which businesses can face costly litigation over trace substances that may naturally occur in agricultural ingredients and foods.
This issue is particularly relevant to chocolate and cacao products because cacao is an agricultural commodity whose composition can naturally vary based on growing region and environmental conditions.
We are concerned that private enforcement can create significant costs for businesses, including legal expenses, scientific testing, regulatory analysis, compliance costs, and other expenses associated with defending or resolving a Proposition 65 claim.
In our view, these costs can sometimes be disproportionate to the underlying consumer-information issue, particularly when a dispute concerns trace amounts of substances that may naturally occur in food ingredients.
We believe consumers deserve accurate, useful, and scientifically grounded information, while businesses deserve a reasonable and practical way to comply with the law.
Our concerns about Proposition 65 enforcement do not mean that we oppose providing consumers with appropriate information. Health HAC provides applicable Proposition 65 warnings because we take our regulatory responsibilities seriously and want our customers to have the information required under California law.
At the same time, providing a warning does not mean that Health HAC agrees with every aspect of Proposition 65, every policy underlying the law, or every approach to its enforcement.
Our Commitment to Our Customers
Health HAC takes product quality, ingredient sourcing, manufacturing, and regulatory compliance seriously.
We work with our suppliers and manufacturing partners to understand the ingredients used in our products and to maintain appropriate quality and safety standards.
When California's Proposition 65 requirements apply to our products, we provide the appropriate warning so that California consumers receive the information required by law.
Our goal is simple: provide our customers with honest, useful information about our products while complying with the laws that apply to them.
Learn More About Proposition 65
Proposition 65 is administered by California's Office of Environmental Health Hazard Assessment (OEHHA). The State of California provides information about the Proposition 65 chemical list, warning requirements, exposure levels, and other aspects of the law.
Learn More About California Proposition 65
You can also review California's official Proposition 65 regulations and related information through OEHHA.
Proposition 65 Law and Regulations