Safe Use Determination (SUD)

A Safe Use Determination (SUD) is a written statement issued by OEHHA, upon request from a business or trade group, that interprets and applies Proposition 65 regulations to specific facts submitted by the requestor. A SUD provides a formal OEHHA determination of whether a specific product, use, or exposure scenario complies with Proposition 65 or requires a warning. Unlike interpretive guidelines, a SUD can be relied upon as an affirmative defence in subsequent Proposition 65 enforcement actions — a business acting in good faith in accordance with an SUD is not subject to civil penalties for the conduct described in the SUD.

California Health & Safety Code §25249.9; Title 27 CCR §§25240–25249 (SUD procedures); OEHHA SUD guidance.

A SUD is one of the most valuable tools available to businesses seeking certainty about Proposition 65 compliance for a specific product or practice. Businesses facing uncertainty about whether a warning is required — particularly for complex exposure scenarios, novel product formats, or ambiguous chemical listings — should consider applying for a SUD. The SUD application must include detailed factual information about the product, the chemical, and the exposure pathway. OEHHA typically takes several months to issue a SUD. The SUD provides protection only for the specific facts described in the application.