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California Prop 65


California Prop 65 warning label

Why is this warning needed?


What is Prop 65?

California State Flag


Prop 65 applies to any product or service received or used in California. As applied to foods, Prop 65 makes no distinction between natural and artificial chemicals, and although it excludes "naturally occurring" chemicals in foods, that term doesn't include man-made pollutants that may end up in natural products through processes outside of the manufacturer's control. Prop 65 does not distinguish between:

  • chemicals that result from natural phenomena like volcanic activity
  • those that are intentionally applied, like synthetic fertilizers and pesticides

As long as the warning is given, Prop 65 doesn't require information regarding the types of chemicals in a product or the levels in which they exist, giving consumers little information. If the regulatory "safe harbor" warning is given, then the seller is deemed to have complied with the law. Businesses with less than 10 employees and products that are within certain "safe harbor" limits are exempt from the warning requirements.

What kinds of chemicals require this warning?


What levels of chemicals require a Prop 65 warning?


Can you give an example?

Lead levels in soil impacted by Prop 65

Lead is an element found in almost all soil. The U.S. Geological Survey has estimated the average lead content of completely uncontaminated soil in the United States is about 16 parts per million (ppm). Over the last hundred years, lead-bearing fuels, paints, and other products have deposited man-made lead contaminants into the soil throughout the U.S. (and developed countries all over the world). Crops that grow in this soil will absorb this man-made lead. In the U.S., lead levels in soil are now considered "low" if they're below 500 ppm, and are considered "high" if they're above 1,000.[1] The EPA requires soils in children's play areas must be under 400 ppm, and in other residential areas must be less than 1,200 ppm. For comparison, the EPA requires that children's toys contain no less than 100 ppm of lead.


When grown in soil with a relatively "low" lead content (500 ppm), spinach and radishes can have lead levels that exceed 3 ppm, while beets and carrots can exceed 6 ppm.[2] Also, herbs may contain over 90% water by weight, so lead levels in dried herbs can be up to 10 times higher than their fresh counterparts. In addition, it's difficult to get root crops (like radishes, beets, or carrots) entirely free of the soil they're grown in, even with power washing. A good washing is critical, because at 500 ppm, even 1% of remaining soil, all by itself, would exceed the lead standards for supplements. Under these circumstances, it's easy to see how it might be difficult to keep lead levels low in natural herbal products, and especially in root crops like angelica, echinacea, licorice, or poria.

Even where Federal and International safety standards are clearly met, if there's any likelihood that lead (or any of the other 800+ compounds on California's list) might exceed California's "safe harbor" levels, then displaying a Prop 65 warning label is the only way to avoid expensive lawsuits.

Who enforces Prop 65?

Prop 65 enforcement


Why not just fight Prop 65 lawsuits?


If the manufacturer's defense is not successful, Prop 65 imposes a heavy penalty on the business for failure to warn, which increases every day the warning is not given, and the business is also required to pay the successful party's costs and legal fees. Even if the manufacturer wins, they still has to pay their own legal fees, which are significant, and which by law they can't recover from the bounty hunter who brought the suit. Although in the past the State of California has taken some action to curb abusive litigation, it has a strong interest in ensuring enforcement actions are filed. Because of these lopsided rules, the manufacturer has everything to lose, and almost nothing to gain by going to trial. As a result, almost all Prop 65 cases are settled for substantial sums without trial, whether the manufacturer actually did anything wrong or not.

So far, RidgeCrest Herbals has never been forced to pay a settlement, so our prices haven't been affected. However, we have seen good companies forced to pay exorbitant sums to settle Prop 65 claims, even though their products are well within federal safety standards and even though the required warnings provide no meaningful guidance to consumers. In our opinion, this kind of injustice has no place in any legal system that pretends to be fair and impartial. And of course, as with any business regulation, it's always the consumer who pays these costs in the end.

What can I do?

Contact your State Representative

If you live in California, tell your legislators that Prop 65 is NOT working. Even the California Supreme Court has acknowledged that Prop 65 has resulted in a forest of meaningless warnings that give no practical guidance for consumers. It makes lucrative work for lawyers, provides a way to publicly "spank" unpopular companies or industries, and subjects innocent manufacturers to an unfair, yet legal, shakedown with costs that are ultimately passed on to consumers.

If you live outside California, write your representatives in Congress. Tell them that California has no right to interfere with your supplements, that they're already extensively regulated by the FDA, and that where supplements and drugs are concerned, Prop 65 should be pre-empted by Federal Law.

[1], retrieved 2011-12-27.

[2], retrieved 2011-12-27.