California Proposition 65 (“Prop 65”) Notices of Violation regarding thermal receipts, thermal labels or stickers

Over the past several months, hundreds of businesses across California (or those outside California that sell into California or whose products end up in California) have been served with Notices of Violation (NOVs) of California’s Proposition 65 (“Prop 65”) for issuing thermal receipts at the register and or using thermal labels and stickers in their stores. This could also apply to stickers used on shipping boxes or various thermal receipts placed in side of boxes. This alert is not limited just to businesses that have checkout registers that use thermal paper.

This sudden influx of NOVs comes after California added a new chemical—Bisphenol S, or BPS—to its official register (in December 2023) of chemicals known to cause cancer or reproductive harm. (see our prior article on that here). As you can see it did not take long for the Prop 65 plaintiff law firms (about 15 or so that spend most of their time on these suits) to get the printing presses rolling (and to keep those “fees” rolling in)

The NOVs allege that receipts printed on thermal paper or thermal stickers and labels, contain BPS, and that by exposing their employees and the public to the BPS in receipts, labels and stickers without providing a warning, the businesses have violated (and are continuing to violate) Prop 65.

If your company has ever been the subject of a Prop 65 suit then you know the massive cost associated with try to resolve them. The settling party has to pay all the other side's attorney fees and we are letting you know those fees are typically 2 to 3 times what they are on the defense side for a tenth of the work done on the defense. It truly is a “legal” shakedown racket. If your company has not been the subject of a Prop 65 case and any of your product ends up in California I’d suggest speaking with us now.

Please start checking the chemical contents for all your labels and receipts now. This site gives a bit more insight on the paper/label maker market response to this issue. (Jan 2025.

There is currently no established safe harbor level for BPS under Prop 65. (this also means that typical "parts per million" PPM testing will not help your defense) Thus, any detectable quantity of BPS can trigger Prop 65 requirements. Once a chemical is listed under Prop 65, businesses have 12 months from that date of listing to eliminate exposure or provide clear and reasonable warnings. The first NOV for BPS in thermal receipt paper/labels was filed in January 2025. As of this writing there are 359 NOV’s officially on file in California.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2025 Conditions of Use

Bisphenol S (BPS) part of polyethersulfone (PES) plastic has been banned under California Proposition 65 effective December 2024

Bisphenol S (BPS) (CAS Number: 80-09-1) is part of polyethersulfone (PES) plastic, which is used to make hard plastic items such as, food utensils and bottles,and also used in synthetic fibers for clothing and other textiles such as, sportswear, socks and raingear. It's also used in epoxy glues and as a corrosion inhibitor, and it also may be in Shipping labels. BPS may also be used to make colors last longer in some fabrics. Consumer products marketed as “BPA-free” might contain BPS. It is a common replacement for bisphenol A (BPA) in polycarbonate plastics and epoxy resins.

Effective December 29, 2024 companies that well products with ANY levels of BPS must now provide wa proposition 65 warning as required by the current regulations. For more guidance on those please contact our office (www.swhlaw.com). OEHHA (the CA office that controls props 65 chemicals list and warnings requirements) has not yet established a “safe harbor level” for BPS. A safe harbor level is a threshold below which a business is exempt from Proposition 65 warning requirements. So as such testing is not going to suffice. Only a warning will work unless there is no detectable amount of BPS in the product which may be an nearly impossible threshold to meet.

We strongly suggest that brands look very closely at all their products for traces of BPS and the contact their suppliers for more details on whether any traces of BPS might be present in their products and to come with a legally sufficient warning strategy for all sales channels.

Effective December 29, 2023, the Office of Environmental Health Hazard Assessment (OEHHA) has added bisphenol S (BPS) to the Proposition 65 list as a reproductive toxicant (female reproductive endpoint). This listing was done via the “State’s Qualified Experts” mechanism, based on the Developmental and Reproductive Toxicant Identification Committee’s (DARTIC) determination that this chemical was clearly shown to cause female reproductive toxicity.

The warning requirement for significant exposures to BPS will take effect on December 29, 2024.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use