Calif Proposition 65 does not apply to small sellers.

[shipscript]

California Proposition 65 requires that products sold into California must carry warning labels if the products contain hazardous chemicals. 

Compliance Resources:

https://www.p65warnings.ca.gov/businesses

https://www.p65warnings.ca.gov/frequently-asked-questions-businesses
https://www.p65warnings.ca.gov/sites/default/files/art_6_business_qa_internet_warnings.pdf

However, this law does not apply to eBay sellers who have 10 or fewer employees.

I sent a letter to the State for clarification, stating that I would post the answer on the eBay forums. The official response confirms that most eBay sellers with 10 or fewer employees are not bound by the prop 65 requirements, even if the products they are selling contain hazardous materials.

Sellers with more than 10 employees who sell affected products into the state are bound by the requirement to supply warning labels, even if their suppliers do not label the products, and probably even if their suppliers are exempt by being under 10 employees.

Here is the letter:

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Hello,

Thank you for contacting OEHHA regarding Proposition 65.

A company is exempt from the warning requirements if they have fewer than 10 employees and/or do not cause an exposure in California. OEHHA cannot give legal advice.  To determine how many employees your business has you may want to seek legal counsel or consult your trade association. Please note that distributors should provide warnings if the products might be distributed or resold by non-exempt businesses or entities to a person in California, because those businesses or entities may still be required to provide a Proposition 65 warning.  Additionally, a company may have contractual obligations to those they sell to that could include indemnification agreements or agreements to “comply with all California laws” that could pull them into litigation.  It would be best for you to consult with your own counsel concerning your business’s potential for liability.

 
For your reference, Section 25102 Definitions [https://govt.westlaw.com/calregs/Document/I4338C640D45011DEA95CA4428EC25FA0?viewType=FullText&origin...)] - provides the definition of employee for purposes of Proposition 65 and reads as follows:
 
…
 
(h) “Employee” shall have the same meaning as it does in Unemployment Insurance Code Section 621 and in Labor Code Section 3351. Generally, and without limiting the applicability of the definitions in these two statutes, this means that an employee is a person who performs services for remuneration under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.
 
In computing whether a person employs ten or fewer employees in his business, all full-time and part-time employees on the date on which the discharge, release or exposure occurs must be counted. Thus, the prohibitions on discharge or release and exposures to certain chemicals will apply to any person who has ten or more full-time or part-time employees on the date in question.
 
Here are other useful links for more information on Proposition 65:
 
Q&A for Businesses on the Proposition 65 Clear and Reasonable Warnings: https://www.p65warnings.ca.gov/sites/default/files/art_6_business_qa.pdf
 
Q&A for Businesses on the Proposition 65 Clear and Reasonable Warnings: Internet and Catalog Warnings:
https://www.p65warnings.ca.gov/sites/default/files/art_6_business_qa_internet_warnings.pdf
 
Frequently Asked Questions for Businesses: https://www.p65warnings.ca.gov/frequently-asked-questions-businesses
 
Warning symbol: https://www.p65warnings.ca.gov/warning-symbol
 
Proposition 65 regulations: http://www.oehha.ca.gov/prop65/law/index.html
 
Proposition 65 in plain language: http://oehha.ca.gov/prop65/background/p65plain.html
 
For Proposition 65 updates, you can subscribe to our listserv at: http://www.oehha.ca.gov/Listservs/default.asp.
 
For additional questions please visit www.P65warnings.ca.gov
 
I hope this information is helpful.


Best Regards,

Anna Smith
Environmental Scientist
Office of External and Legislative Affairs
California Office of Environmental Health Hazard Assessment (OEHHA)
Phone: 916-445-6900
E-mail: anna.smith@oehha.ca.gov 

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[annasunicorns]

Thank you, that is helpful!!!  Hint ebay, even CALI**bleep**IA cares about small sellers. Why the heck was this not investigated by an ebay employee already and included in the announcement?  

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[dhbookds]

Thanks Shipscript!!!! 

[toys-n-at]

Note, however, that having less than 10 employees is not a Get Out of Jail Free card: Please note that distributors should provide warnings if the products might be distributed or resold by non-exempt businesses or entities to a person in California, because those businesses or entities may still be required to provide a Proposition 65 warning. 

As I read this, if I sell to someone who *has* more than 10 employees, and they resell my item, I am still liable. As a seller, am I a "distributor"? The legal impact of resolving this could be devastating. I choose not to play.

[shipscript]

@toys-n-at

...distributors should provide warnings if the products might be distributed or resold by non-exempt businesses...

I asked a number of specific questions and the above was the state's generic catch-all answer because all situations can be different.

This is not legal advice, just speculation based on common sense. If a small seller is a producer/distributor who will be routinely selling to other resellers, the letter warns about indemnification that may be stated in a contract or that may be implied by the nature of the transaction, and it seems to point to an obligation on the part of the small entity to provide labeling. However, I would suggest that a seller who is acting as a retailer, not a wholesaler or distributor, and who just happens to occasionally sell to a non-exempt entity that just happens to resell, is not going to have much of a case against them. 

My non-legal Example: If I list a used fishing tackle box on the internet, I'm going to operate under the assumption that I have no labeling requirements -- even if there is a possibility that a thrift store with a part time staff of 12 might happen to buy the box with lead sinkers and lures, intending to resell. They would have to provide labeling about the lead sinkers. I don't think a viable case could be brought against me.

My non-legal Example: If I create cute little lead-weighted miniatures that I will bundle and sell in wholesale lots of a dozen on a regular basis, I will assume that labeling will be required. The intention here is clear that I will likely be selling to a retailer who may be non-exempt.

In between those two examples will be a lot of gray area. The state is unlikely to go after grandma's garage finds unless there is a political reason to go after that specific grandma.

[iart]

Thanks shipscript, you are always a big help!

But, we can assume that ebay doesn't know how many employees we each have (if any). Do you think that they will suppress search results if the info isn't filled out?

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@shipscript wrote:

However, this law does not apply to eBay sellers who have 10 or fewer employees.

[shipscript]

@iart

No, I don't think eBay will suppress search based on this field. The Prop 65 box is there as a convenience to the seller to help the seller comply. Violation warnings won't come from eBay. Instead, lawsuits will be brought by watchdog groups who will comb online sales sites looking for labeling. And yes, they would need to first determine your number of employees before they could bring a suit.

[fern*wood]

Did ebay mention the 10 employee or less part in their announcement?

Thanks for your help.

@shipscript

[femmefan1946]

There is some concern on the eBay Canada boards about this, too.

May I reprint your post for use by my countrymen?

[cashvaluerecovery2011]

It really is amazing how California can find any way possible to put new burdensome regualtions into place to supposedly "help" their citizens. I mean nobody wants hazardous anything right? Except all the open air drugs, feces ridden streets and that sorta thing. California doesnt find those things hazardous at all.

[shipscript]

@fern*wood

Here is eBay's announcement:

https://community.ebay.com/t5/Announcements/Updates-to-California-Proposition-65-Going-into-Effect/b...

eBay has updated with screenshots since the initial post, but they still do not mention 10 employees. Instead, they refer sellers to the State website.

When I tried to get clarification from eBay, they again referred me to the State, so I contacted the State, and, within a few hours, had the reponse posted here.

@femmefan1946

Absolutely — share and repost as needed.

[dropndeal]

Are you purchasing directly from the manufacturer for the purpose of distribution only? When purchasing, did you provide your state sale tax ID when you purchased said item? As a seller, do you require your buyers to provide a state sales tax ID? Do you limit your customers to resellers only? The obvious answer here is you are not a distributor simply because you sell a product.

[custom-performance-products]

What a mess of needless overegulation.  I am sure the do gooding California politicians thought they were saving the constituents from the evils of corporate America just slavering to poison the people and the earth.   But in reality they have just created a needless burden on industy and a "boy that cried wolf" scenario.   In my general business (auto parts), the majority of catalogs are now polluted with cute little yellow diamonds to where it looks like anyone working on a car is in dire danger of imminent death.  So basically mechanics are just going to ignore them all, even the really bad stuff.  In my specific area (custom wheels), they have to be labeled with the scary sounding carcinogen warnings for chromium, zinc, and lead.  Now.  In the real world, your little rugrat would have to go out in the garage and grind the chrome off your wheels and eat the dust daily for the better part of their young life in order for the chrome on your whels to cause any sort of cancer danger, but by gosh the politcians are saving their citizens!

OK, off the soap box and back to the topic.

Yes, the technical side of the law says I'm exempt with 10 or less employees.  FOR NOW.  But regulations only get more strict, never less.  Eventually, they will modify the regulation to open it up to everybody.  I mean how can we stop our citizens from being poisoned by the big companies, only to let them be poisoned by the small companies?  (tongue in cheek).  It will happen.  So.  Right now my suppliers (the wheel manufacturers)  label all the wheels we are selling with the prop 65 warning.  All of them.  Right on the outside of the boxes.  In nice bold yellow.  So a customer (or a fly by night class action law firm posing as a customer) buys my item, gets it with the nice big bold yellow warning as to how my chrome wheels are likely to kill him(her), but lo and behold they were not warned by the seller prior to the sale.  LAWSUIT!  This folks is the scary part, it will be "enforced" by these legal vultures looking to setle for big bucks for their "clients".  And likely not by the state of California itself.

So my opinion?  If your products that you are selling are labeled by the mfg under prop 65, you'd better pass the warning along.  If it is not required right now, it will be in the future.  They will either lower the threshold, or you may grow, or they may even consider MY supplier as having more than 10 employees and require the that end user (my customer) be warned.

Why take a chance?  Adding the warning to listings is free.  I'm in the midst of revamping my ads and I intend to add it to everything as part of the process.

[tealt]

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@custom-performance-products wrote:

What a mess of needless overegulation. ..

Yes, the technical side of the law says I'm exempt with 10 or less employees.  FOR NOW.  But regulations only get more strict, never less.

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Having lived in California forever, let me say that you've got that right!

Once California politicians get their camel noses under tent of citizens' daily life, the scope and depth of regulation and laws and propositions increases and increases and increases.  Sure, California citizens vote directly on propositions, but you should see all the misinformation that hits the fan at voting time.

I could name several areas in which we were told by those in Sacramento/locally, "Oh, we'd never do that.  We'd never stretch this regulation/law/proposition THAT far."  Oh yeah?  Next time you turn around, guess what?

[dropndeal]

I agree it is just a matter of time before the debacle that is Prop65 is expanded to include all sellers, regardless of size or quantity sold. 

I too am an automotive parts seller/supplier in South Alabama who enjoys frequent purchases from the buyers of California. Because eBay has provided an area in the seller form to include a Prop65 statement, I simply added the following information to my standard eBay text file:

"WARNING: Operating, servicing and maintaining a passenger vehicle or off-road vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle"

I hope this helps.