Extracted from Law360
On Dec. 19, the California Office of Environmental Health Hazard Assessment, or OEHHA, approved the addition of vinyl acetate as a carcinogen to the Proposition 65 list of chemicals.
Beginning one year from the date of the listing — i.e., on Dec. 19, 2025 — companies will have to display Proposition 65 warnings for products that expose consumers to vinyl acetate, or else reformulate the products so no warning is required.
Given the current use of vinyl acetate in numerous products, the listing will have sweeping implications for businesses in the retail, food and beverage, paint, adhesive, industrial manufacturing, and personal care product industries.
Background on Proposition 65
California's Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act, requires businesses to provide warnings before exposing individuals to chemicals known to the state of California to cause cancer, birth defects or reproductive harm.
Proposition 65 requires California to publish a list of these chemicals, which must be updated at least once a year. The list has grown to include approximately 900 chemicals since it was first published in 1987.
Proposition 65 imposes civil penalties of up to $2,500 per violation. The statute also provides that any company that "threatens to violate" the warning requirement may be "enjoined in any court of competent jurisdiction."
The California attorney general, any district attorney and certain city attorneys are authorized to enforce Proposition 65. In addition, any individual — even someone who has not suffered harm or ever used the product at issue — may bring a private enforcement action.
The private enforcer must first serve a 60-day notice of violation on the alleged violator before filing a lawsuit. These private enforcers take home 25% of all civil penalties imposed as a bounty for their efforts, and their attorneys routinely recover their fees.
These "bounty hunter" lawsuits often result in settlements, which include civil penalties, attorney fees and injunctive relief — such as displaying Proposition 65-compliant warnings, or agreeing to reformulate a product.
California Places Vinyl Acetate on the Proposition 65 List
Beginning on Dec. 19 of this year, companies will have to display Proposition 65 warnings for products that expose consumers to vinyl acetate, or reformulate the products so they do not require warnings.
This one-year grace period between the date the chemical was listed and when businesses must come into compliance is intended to give businesses time to evaluate their products and operations to determine whether compliance measures — such as warning labels — are required.
Notably, OEHHA has not yet established a "safe harbor" level for vinyl acetate. A safe harbor level is a threshold below which a business is exempt from Proposition 65 warning requirements.
These levels provide clarity and protection for businesses. Without a safe harbor level to guide them, businesses should assume that private enforcers will serve notices of violation if there is any detectable amount of vinyl acetate.
The burden would then shift to the alleged violator to prove the product does not require a warning through performance — including through quantitative risk assessments and exposure assessments.
Products That May Contain Vinyl Acetate
Vinyl acetate is a synthetic chemical used for the production of polymers and copolymers, such as polyvinyl acetate, polyvinyl alcohol and ethylene vinyl acetate copolymers, which may be found in some of the following products.
Consumer goods:
- Food and beverage containers;
- Heat-sealed plastic films for food packaging;
- Plastic bottles;
- Gasoline tanks;
- Personal care items, such as cosmetics;
- Food starch modifiers; and
- Thickening agents.
Industrial and commercial products:
- Adhesives and glues;
- Paints;
- Paper coatings;
- Inks and lacquers;
- Pesticides;
- Automobile coatings; and
- Insulation.
Clothing and textile products:
- Clothing finishing;
- Leather finishing; and
- Textiles.
Implications for Businesses
Given the widespread use of vinyl acetate, businesses across a range of industries need to take action to determine whether their products comply with Proposition 65, assess the need to reformulate or display warnings, evaluate potential affirmative defenses, and determine the risk of private enforcement.
Potential actions that businesses may take include the following.
Conducting Product Assessments
Often, a business may not even know if vinyl acetate is present in its products — or if it is, how it got there. Companies should review product formulations and materials to identify potential vinyl acetate content.
Testing for vinyl acetate may be necessary to determine exposure levels. First, evaluate whether there are legal grounds to perform testing.
Evaluating Exposure Scenarios
Without a safe harbor level for vinyl acetate, companies face significant compliance challenges.
It may be necessary to work with consultants to perform risk and exposure assessments to determine whether products require Proposition 65 warnings for vinyl acetate.
Supply Chain Issues
To determine whether any products may contain vinyl acetate, companies should assess their supply chains.
Companies may consider requesting supplier certifications, testing and data sheets.
Product Reformulation
Companies may seek to reformulate their products to eliminate vinyl acetate to avoid Proposition 65 warnings.
Before doing so, they should understand the cost of reformulation — and whether it would require significant changes to manufacturing processes and supply chain agreements.
Providing Warnings
If businesses determine a Proposition 65 warning is required, they need to determine the appropriate content of the warning, and the method of transmission.
OEHHA is updating the Proposition 65 safe harbor warning language, and businesses should stay abreast of these regulatory changes. Businesses may also need to evaluate whether to provide written notification to downstream entities that their products require warnings.
Defense and Indemnification
Ensure your company has contractual protection in the event of litigation, including defense and indemnification provisions in supplier agreements.
Businesses should use the one-year grace period to their benefit and begin to evaluate their products, understand their compliance obligations and mitigate risks associated with this new listing.
With proactive planning, companies can navigate the complexities and uncertainties surrounding this new listing.