California Prop 65 Warning & Information

California Residents Only

Warning: Cancer and Reproductive Harm –

Wake&Make takes food safety very seriously. All foods that are grown in nature contain trace levels of naturally occurring elements/minerals such as lead and cadmium, which are naturally present in all soils because they are found in the Earth’s crust. Because these minerals, including cadmium and lead, are present naturally in the soil, they are absorbed by plants through their roots along with other nutrients. As a result, there may be unavoidable traces occurring in virtually all foods, including fish, meats, grains, fruits and vegetables.

The Food and Drug Administration (FDA) and other health authorities have determined that tiny traces of naturally occurring minerals in foods are unavoidable and do not present a public health risk, threat of injury, or need for warnings. The FDA regularly monitors the amount of cadmium and lead in food and we ensure that our products safely pass any FDA regulations.

*Contaminants are often expressed in micrograms (mcg). When considering the levels of naturally occurring elements such as lead or cadmium found in food, it is helpful to put these units of measurement into perspective. How much is a Microgram (mcg)? A microgram is one/one-millionth of a gram. To put this unit into perspective, a penny weighs 2 grams. To get a microgram, you would need to divide the penny into 2 million pieces. A microgram is one of those two million pieces.

California law contains what is known as the Safe Drinking Water and Toxic Enforcement Act, also referred to as Proposition 65 (“Prop 65”). Prop 65 is a unique, California-only “right to know” law that requires products sold in California to bear warning notices about potential exposure to any of the over 800 substances (click here for the full list) listed by the state. Prop 65’s warning standards are uniquely low and not safety-based. As a practical matter, Prop 65 warnings are required for any product (food or non-food) that exposes an individual in California to virtually any detectable amount of a listed chemical.

Prop 65 does not ban any products from sale in California; it simply requires warnings about the listed chemical contained in the product. No other state has a law similar to Proposition 65, which requires warnings for listed chemicals contained in products at levels that are far below levels known to cause any actual harm, or that are regulated by the FDA or other federal law. Proposition 65 regulates substances officially listed by California as having a 1 in 100,000 chance of causing cancer or birth defects over a 70-year period.

Trace amounts of lead, cadmium, and other metals and chemicals listed under California’s Proposition 65 are found in some of even the most carefully selected and sourced ingredients contained in Wake&Make Hot Cocoa. Lead, as an example, is a naturally occurring element that is found throughout the entire environment, including in soils where it can be taken up by natural plants and herbs all over the world. None of these elements are added by farmers or by Wake&Make. We follow good manufacturing practices throughout our supply chain to minimize or eliminate any contamination.

Source: US Food and Drug Administration, Total Diet Study Market Baskets 2006 through 2011

Rather than face more unscrupulous lawsuits, Wake&Make prefers to comply with Prop 65 by: (1) providing warnings where there are detectable levels of trace amounts of listed chemicals; or (2) limiting the serving size for California residents to avoid any warning requirement; or (3) placing the Prop 65 warning on all of our products. We strongly believe that any minute levels of the chemicals listed by Prop 65 in its products should be exempted under the “naturally occurring allowance” exception.

Why are there Prop 65 warning labels on so many products in California?

Prop 65 has a “citizen-suit” provision meant to pay for itself and not require funding from the legislature. To add incentive to California citizens to police Prop 65, when a citizen (or private enforcer) brings a lawsuit against a company, they are awarded a payment equal to 25% of the Civic Penalty settlement imposed on the manufacturer.

These individuals and law firms may not have to prove that they have been injured in any way by whatever violation of the Prop 65 they are claiming. Prop 65 allows lawyers and individuals to bring suits against companies and put the burden of truth on the manufacturer. Due to the high costs of litigation, most of these lawsuits settle out of court and never make it to trial. In 2016, businesses paid $30.1 million in Prop 65 settlement payments. Of that total, 72% ($21.5 million) went to attorney’s fees.

Example settlement of $100,000: Approximately $72,000 would go to attorney fees and $28,000 would go towards the Civic Penalty. Of that $28,000 Civic Penalty, $7,000 would go to the private individual filing the lawsuit and $21,000 would go to the Office of Environmental Health Hazard Assessment. You can view the 2016 Prop 65 Settlement Summary here.

Will there be any changes to prevent unnecessary Prop 65 lawsuits?

Governor Brown Proposes to Reform Proposition 65: On May 7, 2013, Governor Edmund G. Brown Jr. proposed reforms to strengthen and restore the intent of Proposition 65, a three-decade-old law enacted to protect Californians from harmful chemicals, that has been abused by some unscrupulous lawyers driven by profit rather than public health. Read more about this here.

To learn more visit California's Prop 65 website for additional information.