Prop 65 for Online Businesses and Amazon Sellers: Warnings, Notices and Amazon Indemnification

By Paul S. Rafelson, Founder, Rafelson Law PLLC

What is Prop 65?

Proposition 65, formally the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California law that requires businesses to give a clear and reasonable warning before knowingly and intentionally exposing anyone to a chemical California has listed as causing cancer or reproductive harm. The California Office of Environmental Health Hazard Assessment (OEHHA) maintains the list, which the Governor must update at least once a year.

Many business owners see the law as a yellow warning triangle on a product page or label.

Does Prop 65 apply to me if I sell on Amazon from outside California?

It can. The California Attorney General says the warning requirement applies whether or not a business is in California, as long as its products cause exposures to individuals in California. A product shipped to a California customer can qualify.

Whether it actually applies to a given product depends on the chemical, the level of exposure and whether an exemption fits.

Does the fewer-than-10-employees exemption protect me?

The statute exempts businesses with fewer than 10 employees (nine or fewer), but that may not end your risk as an Amazon seller. The Prop 65 statute itself says a “person in the course of doing business” does not include a person employing fewer than 10 employees. Our concern is a separate, contract-based issue: your Amazon agreement.

Section 6.1 of Amazon’s Business Solutions Agreement provides that the seller will defend, indemnify and hold Amazon harmless against third-party claims arising from or related to the seller’s non-compliance with applicable laws and from the seller’s products. Amazon does not itself have fewer than 10 employees, so the exemption does not protect Amazon. If Amazon is named in a Prop 65 claim over your product, Amazon may look to you for defense and indemnity under that clause, whether or not you are individually exempt. This is our analysis of how the contract works; how a given claim plays out depends on its facts.

Sources: Cal. Health & Safety Code § 25249.11(b), leginfo.legislature.ca.gov. California Attorney General’s Prop 65 FAQ. Amazon’s Business Solutions Agreement, General Terms Section 6.1 (“Your indemnification obligations”).

What did Lee v. Amazon.com change?

In Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, as modified on denial of rehearing Apr. 8, 2022, review denied June 15, 2022, the California Court of Appeal reversed a trial-court ruling for Amazon on a Prop 65 claim about skin-lightening creams, alleged to contain mercury, that third-party sellers sold on Amazon. The court held:

• Section 230. Section 230 of the federal Communications Decency Act did not bar the failure-to-warn claim, because the claim rests on Amazon’s own Prop 65 obligation and does not treat Amazon as the publisher or speaker of the sellers’ content.
• Knowledge. The trial court erred by requiring actual knowledge. Constructive knowledge, meaning what a business using reasonable care or diligence should know, can satisfy the “knowingly and intentionally” element.
• Retroactivity. Amazon relied on a 2016 OEHHA regulation (Cal. Code Regs., tit. 27, § 25600.2(e)) that requires actual knowledge for retail sellers. That regulation became operative on August 30, 2018. The court held it did not apply retroactively to the sales at issue, which took place before the regulation became operative, because it changed rather than merely clarified existing law, so Amazon could not rely on it for an actual-knowledge requirement.
• Disposition. The judgment was reversed and the case remanded for further proceedings, including whether the products with different ASINs were the same as the products tested, and penalties.

The opinion addressed sales from before the regulation became operative. It does not decide how the regulation applies to sales after August 30, 2018.

Lee was a case against Amazon, not against a seller. Its effect on sellers is indirect: it increases Amazon’s own exposure, which can affect how Amazon treats Prop 65 matters and its sellers.

What is a Prop 65 notice of violation, and what happens next?

A notice of violation, or 60-day notice, is a letter from a private enforcer claiming you sold a product without a required warning. A private party sues only after giving at least 60 days’ notice, with a certificate of merit, to the business, the Attorney General and the local prosecutors, and only if no public prosecutor has filed and is diligently prosecuting its own case.

• Penalties. A court may order a business to stop the violation and may impose civil penalties of up to $2,500 per day for each violation.
• Settlements. Private settlements must be submitted to the Attorney General and, if a case is filed, approved by a court, which reviews warning terms, the plaintiff’s legal expenses and penalty amounts.
• Options. Possible responses include testing the product, providing a compliant warning, reformulating, removing the product or contesting the claim. The right choice depends on the facts.

Source: California Attorney General Prop 65 FAQ: oag.ca.gov/prop65/faq.

What counts as a compliant Prop 65 warning?

A compliant warning is a “clear and reasonable” warning that reaches the person before exposure. The regulations include pre-approved “safe harbor” warnings that are deemed clear and reasonable if properly transmitted. A business may also use other warning language if it is clear and reasonable. The Attorney General says the warning must effectively reach the person before exposure. For an online sale, the warning has to reach the buyer before the purchase is complete. A warning buried in a tab or shown after checkout fails the safe harbor, and enforcers look for it. The online warning is in addition to the warning on the product or its packaging, not a substitute for it. Since January 1, 2025, a short-form warning must name at least one listed chemical. The older short-form text stays safe-harbor only for products made before January 1, 2028. A retailer has 60 days after a supplier’s notice to update the online warning. We review how your listings present the warning and set up a compliant warning on your Amazon listing and on the product.

Key terms

Notice of violation (60-day notice)

A letter that must precede a private Prop 65 lawsuit, stating the alleged violation.

Safe harbor warning

A warning whose form and content the regulations deem clear and reasonable.

Safe harbor level (NSRL or MADL)

An exposure level below which no warning is required for a given chemical.

Private enforcer

A person or group suing in the public interest under Prop 65 after giving notice.

Why risk is manageable before a notice

Private enforcers test the same categories year after year, and a business in one of them draws attention. Whether to warn, test or reformulate is a business decision with listing and conversion costs, and the wrong warning is its own problem. We review your catalog, your supplier contracts and your Amazon compliance requests and tell you where the exposure sits.

How do I get started?

Contact us. Bring the notice and the product and chemical it names, and we will tell you whether we can help.

Frequently asked questions

Related pages

Sources and notes

• California Attorney General, Proposition 65 FAQ: oag.ca.gov/prop65/faq.
• OEHHA, Proposition 65 in Plain Language (Aug. 1, 2017): oehha.ca.gov; Proposition 65 List: oehha.ca.gov/proposition-65/proposition-65-list.
• Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, as modified on denial of rehearing Apr. 8, 2022, review denied June 15, 2022: courts.ca.gov/opinions/archive/A158275.PDF.
• Amazon Services Business Solutions Agreement (U.S.), General Terms Section 6.1 (indemnification).
• Cal. Health & Safety Code §§ 25249.6, 25249.7 and 25249.11(b), leginfo.legislature.ca.gov.
• Cal. Code Regs., tit. 27, § 25602(b) (internet warnings) and § 25603 (short-form warnings, 2025 amendment and 2028 transition): OEHHA regulatory text. State warnings-site FAQ for businesses.