In the first half of 2025, two private enforcers have targeted over 200 companies operating in the state for purported exposure to Bisphenol S (BPS) from retail store thermal receipts provided to customers in California. The private enforcers claim that consumer exposure to BPS through dermal contact with the thermal receipt, without a prior warning, would be a violation of the California Safe Drinking Water and Toxic Enforcement Act of 1986 (known as “Prop 65”). Prop 65 is a consumer right-to-know law that may require warnings for exposure to listed chemicals (there are more than 950 chemicals currently on the list).
Civil penalties under Prop 65 can amount to $2500 per violation/per day, and we expect the enforcers may try to claim that each receipt provided to a California consumer constitutes a separate violation. The enforcers will also seek to collect their attorney fees and costs. The recent wave of Prop 65 Notices of Violation has focused on large retail chains, restaurant franchises, and consumer retail stores. Any company with ten or more employees that issues thermal receipts at retail stores runs the risk of being subject to an enforcement action. Regulatory compliance measures are advisable for risk management and prevention of prospective enforcement actions. If a company is already the subject of a pending Notice of Violation, safe harbor exposure defenses may be available.
Because any company with more than ten employees that has retail stores in California may be impacted, regardless of where the company is headquartered or has its primary place of business, to reduce the risk of Prop 65 enforcement actions related to thermal paper receipts, companies should consider the following actions:
1. Evaluate Receipt Paper Content
- Review purchasing records and supplier certifications regarding thermal receipt paper used by the company.
- Ask suppliers whether their paper contains BPS or BPA.
- Consider switching to phenol-free thermal paper if available.
2. Implement Warnings if Necessary
- If switching to phenol-free paper is not immediately feasible, post “clear and reasonable” Prop 65 Safe Harbor warnings at the point of sale or on the receipt itself to mitigate enforcement risk.
3. Evaluate Procurement Policies
- Include chemical disclosure and Prop 65 compliance requirements in upstream vendor contracts for thermal receipt paper.
4. Consult with Legal Counsel
- For risk management purposes act quickly to avoid being subject to an enforcement action. If your company receives a Notice of Violation, certain defenses may be available, and an early assessment is advisable to help reduce or eliminate exposure to liability.
Please reach out to the author or your GRSM attorney for more details.