California’s Proposition 65 requires businesses to provide clear and reasonable warnings to individuals in California before exposing them to chemicals on a list of carcinogens and reproductive toxics published by the State. The California regulatory agency that oversees implementation of Proposition 65, the Office of Environmental Health Hazard Assessment (“OEHHA”), has revised the regulations that establish what constitutes a “clear and reasonable” warning. The new requirements will not take effect until August 30, 2018, to give businesses a chance to come into compliance. Products that are manufactured before that date may continue to use the previous warning language, and warnings that are in compliance with a court-approved settlement are acceptable even after that date.
Most importantly, the “safe harbor” warning has changed, both the text and method of providing the warning. The new warning language requires naming one or more of the listed chemicals that are in the product and which result in the warning. It also requires referencing a website that OEHHA has created for more information on exposure to Proposition 65 chemicals. The new warning also states that the product “can expose” a user to the referenced chemical, rather than merely stating that the product “contains” a listed chemical. The new regulations set forth safe harbor language for exposure to carcinogens, reproductive toxicants, and various combinations. There are a number of new product-specific warning requirements, such as “Food Exposure,” “Food and Non-Alcoholic Beverage Exposure Warnings For Restaurants,” “Furniture Product Exposure Warnings,” etc.
Requirements on the method of transmitting the warning have changed, providing more detail than in the past. Changes include a minimum font size of 6-point type, a symbol of a black exclamation point in a yellow background triangle with a bold black outline, the word “WARNING” in bold, capitalized letters, and when the consumer product label has information in a language other than English, the warning must be provided in that language, in addition to English.
In addition, noting the statutory requirement to minimize the burden on retailers, the new regulations impose extensive new requirements when the manufacturer, distributor or importer of a product hand off the responsibility for providing the warning to the retailer, such as using shelf signs or tags or stickers. There are also new requirements on warnings for internet and catalog sales.
Companies whose products already carry Proposition 65 warnings, as well as companies who are not certain whether their products require warnings, need to review these new requirements carefully. At a minimum, the warning language will need to be revised, unless the warning is required by a court-approved settlement. Providing compliant warnings may be challenging on some products due to small size or labels that are already crammed with text. In addition, if companies have provided warnings as a precaution, without test data to support the need for the warning, testing may be required to determine what, if any, listed chemicals are in the product. And the private enforcement plaintiffs’ bar will be gearing up to start filing 60-day notices under the new requirements as soon as they become effective.
For further information about the new requirements or compliance advice, please contact John Epperson at firstname.lastname@example.org or Keith Casto at email@example.com at Cooper, White & Cooper LLP.