It's been more tricks than treats this season for restaurants located in California. In the past few weeks, there have been over 100 California Proposition 65 60-day notices of intent to sue issued on behalf of claimant Golden State Consumer Law Group, Inc. for the alleged failure to warn of exposures to alcoholic beverages.
Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a "clear and reasonable" warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm. Potential penalties for failing to comply can be steep — up to $2,500 per day for each violation. Non-compliant businesses may face enforcement actions, penalties, and attorney fees.
Regulations effective in 2018 provide certain "safe harbor" provisions, which set forth specific warning language and methods of transmission that are deemed "clear and reasonable" pursuant to Proposition 65. There are specific warnings that restaurants and sellers of alcoholic beverages must use to avail themselves of the Prop. 65 safe harbor warning protections. There are also special compliance procedures for parties receiving notices of intent to sue pertaining to on premises alcohol consumption. Prudent businesses should be aware of these provisions to avoid or minimize the risk of Prop. 65 liability.
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