Due to recent developments in Prop 65 case law, it is important that all sellers consider their Prop 65 compliance obligations now, as today more Amazon sellers may be at risk of falling victim to bounty hunter attorneys (acting as “private” attorneys general for the state) looking to extract tens of thousands of dollars, or more, from you for “non-compliance.” 

 This includes small brand owners and even resellers who just sell one unit of a product. This dangerous case law is putting everyone at risk.

What is Prop65?

The Safe Drinking Water and Toxic Enforcement Act of 1986, often known as California’s Proposition 65. The purpose of the law is to alert Californians to potential chemical exposure that could impair their reproductive system or cause cancer. Every seller of consumer goods to citizens of California, including online retailers like Amazon Sellers, must abide by the legislation. Compliance with this regulation often necessitates warning California consumers about their exposure to certain chemicals. The Proposition 65 list currently includes well than 1,000 compounds, and more are being added every year.

Does the 10 and under employee rule apply here?

In the case of Amazon, unfortunately, no. Amazon sellers who believe they may be exempt from Prop 65 due to their size (under ten employees) or because they are resellers, need to reevaluate their compliance. Even though the seller might have fewer than 10 workers and be protected from Prop 65 because of this, Amazon has more than 10 workers, and the Amazon Business Solutions Agreement the seller signed calls for the seller to defend Amazon. It is the obligation to indemnify Amazon (who is not exempt) and the recent case law developments that puts everyone at risk. 

Is there insurance for Prop65 violations?

Possibly, but it is not a common policy due to the risk involved. We are currently vetting companies that offer this type of policy and will update this page and our community once we find reputable solutions. 

Does this apply to businesses outside of the U.S. but selling on Amazon.com?

Yes, this applies to any business selling products on Amazon in the U.S.