Proposition 65 (often referred to simply as “Prop 65”) enforcement continues to grow increasingly challenging for those who sell products in online portals. This is especially true for Amazon, as recent statistics show Amazon resellers are responsible for almost 10% of recent Prop 65 “Intent to Sue” notices.
Amazon now requires all sellers on the platform to provide Prop 65 warnings for any product they list. The failure to comply not only risks removal of the product from Amazon’s platform it exposes the seller to reimburse Amazon for any resulting fines or fees. In many cases, the seller themselves are prohibited from offering any product for sale on the Amazon portal. The risks are substantial. What is the responsibility of Amazon and online sellers to indemnify California Prop 65 exposures and how can they comply?
The first and most obvious solution is to seek existing Proposition 65 warnings and labels for the product they wish to sell. These may be obtained from the Original Equipment Manufacturer (OEM). You will need to know the “type” of exposure under Prop 65 as well as the names of any harmful chemicals used in the manufacture of the product.
The responsibility of Amazon and online sellers to indemnify California Prop 65 risks is clearly identified in the Guidance for Prime Sellers on Amazon Seller Central:
For all products you currently sell or will sell on Amazon Prime Now, you have an obligation to determine if the product requires a Proposition 65 warning and provide the warning to us as required by California law and this policy. Even if your products currently contain a Proposition 65 warning label, you need to provide us with the warning that must be displayed online.
You are responsible for all costs associated with responding to 60 day notices filed by plaintiff’s lawyers under Prop 65 regardless of how many employees you have or if you are located in the State of California. If the product you are listing is for sale in California you must fully comply with Amazon’s indemnification policies.
Have you been contacted regarding a 60 day notice or other violation associated with California Prop 65? You need sound advice and counsel to protect your interests and reduce or eliminate legal and financial exposure.
