Following the addition of Bisphenol S (BPS) to California’s Proposition 65 list effective December 29, 2024, there has been an avalanche of demands and lawsuits against brick-and-mortar businesses alleging that their paper receipts fail to comply with Proposition 65 warning requirements.
Learn more about these Proposition 65 thermal receipt paper complaints, including key takeaways for business owners with a presence in California.
Link: https://www.bipc.com/warning!-new-wave-of-proposition-65-complaints-targets-thermal-receipts
Article: Be warned! Recent updates to the list of ingredients subject to the California Safe Drinking Water and Toxic Enforcement Act of 1986 (known as “Proposition 65”) have led to hundreds of new 60 Day Notices of Violation issued to restaurants and businesses using thermal receipt paper. Businesses that issue paper receipts to customers in the state of California — read carefully.
Proposition 65 is a California law that requires businesses to provide warnings about significant exposures to chemicals that cause cancer, birth defects, or reproductive harm. Following the addition of Bisphenol S (BPS) to California’s Proposition 65 list effective December 29, 2024, there has been an avalanche of demands and lawsuits against brick-and-mortar businesses alleging that their paper receipts fail to comply with Proposition 65 warning requirements.
These notices of violation are somewhat unique in the Proposition 65 world. Typically, notices of violation are sent to manufacturers, distributors, and/or retailers of a product that allegedly contains an ingredient on the Proposition 65 list and is sold without an appropriate warning. Here, however, the restaurants and retailers receiving these notices neither manufacture nor “sell” the receipt paper provided to their customers. Yet these establishments, many of them small businesses, are increasingly finding themselves on the wrong side of a Notice of Violation because of the paper they purchase from a third party and use to print customer receipts.
Even worse, this paper is often shipped without any Proposition 65 warning on the box and may even contain a statement that it is BPS-free. How can this be? The answer usually lies in the method of testing.
Paper manufacturers may test their paper according to an arbitrary “LOD” or limit of detection. This means that paper a manufacturer has determined to be BPS “free” may still contain small amounts of BPS that fall under the manufacturer’s limit of detection.
But if a plaintiff (in this case, usually an “environmental” or “health” organization whose sole mission is to generate and file Proposition 65 notices of violation) obtains a sample of that paper and uses a different methodology or lower limit of detection, it may find trace amounts of BPS in the paper.
Because BPS is new to the Proposition 65 list, there has been no “safe harbor” level (aka “no significant risk level”) scientifically established under the law. This means that, at least for now, even tiny amounts of BPS in thermal receipt paper can lead to significant liability.
The statutory damages available under Proposition 65 can be severe, up to $2,500 per violation/per day. We therefore recommend that any business issuing paper receipts in the State of California assess its risk and consider: 1. switching to a type of paper that is known to contain no trace amounts of phenol, and/or 2. posting a compliant Proposition 65 warning wherever receipt paper is issued, and on the receipt itself if possible.
If you are a business owner who has received a Proposition 65 notice of violation, time is of the essence. For example, if you remediate the issue within five business days of receiving a notice of violation, you may be eligible to take advantage of a newly available grace period. If you receive a notice of violation, contact experienced legal counsel immediately to minimize exposure and ensure prompt compliance. At Buchanan, we have a multi-disciplinary team of class action defense attorneys that can assist in compliance with applicable laws and regulations, like Proposition 65.
Author:
Jennifer M. Oliver
Email: jennifer.oliver@bipc.com