Cannabis business owners in California should take note if they are unaware that Proposition 65 applies to them.  Among other requirements, Proposition 65 (aka the Safe Drinking Water and Toxic Enforcement Act of 1986) requires that businesses refrain from knowingly and intentionally exposing individuals to any of the chemicals contained on a state-published list of chemicals which are known to cause cancer or reproductive harm.  Marijuana smoke has been included on the list since 2009.

In addition to enforcement by the California Attorney General and certain other public enforcers, private parties may bring an action to enforce Proposition 65 on public interest grounds.  Private parties must comply with certain requirements, the first of which is serving a 60-day notice on the alleged violator with details of the alleged violation, relief sought and other details.  A spate of these 60-day notices have been served on California cannabis businesses in 2017.  The notices typically request that the business enter into a written agreement to provide warnings compliant with Proposition 65, pay a penalty, and either recall products already sold or attempt to provide health hazard warnings to those who purchased the products.  It is unclear what the end result will be with respect to the current batch of notices, but it is clear that some private parties have an eye on enforcing Property 65 against cannabis businesses.

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