Consumer Products Sellers Beware: New Prop 65 Warnings Coming in California

Prop 65 Warning

Photo credit: iStock.com/kchungtw

By Susan Kohn Ross and Matthew S. Beasley

 

New Proposition 65 safe harbor warnings will take effect on August 30, 2018. While these new warnings relate to a wide range of goods and services, we are focused on changes that impact consumer products due to the focus of our clientele. If you are currently subject to Prop 65, you will continue to be subject to its requirements. If you are not currently impacted, you may be under the new rules!

Not sure? Check the various fact sheets published here, or more generally the “warnings page” here.

New Categories

Warnings are now expressly required on your website! Internet warnings – “a warning that complies with the content requirements of Section 25603(a) must also be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase.” The Office of Environmental Health Hazard Assessment or OEHHA (the California state agency which oversees Prop 65) noted the following: “Some online retail sellers who currently provide an internet warning do so by providing the warning as a pop-up when the purchaser enters a California zip code. This is an example of a way to prominently display ‘the warning to the purchaser prior to completing the purchase’ as required by the regulation.”

Pop-up ads are clunky and annoying, but given the agency’s guidance, pop-ups may be the best option to ensure compliance.

Just as Internet warnings are new, so is the requirement for catalog warnings – “a warning that complies with the content requirements of Section 25603(a) must also be provided in the catalog in a manner that clearly associates it with the item being purchased.”

If you distribute catalogs within the state, whether in printed or electronic copy, you will now have to comply with these California requirements in order to be compliant.

In addition, the new regulations will expressly require warnings for the following categories of goods and services, in addition to those for which warnings are already required: “dental care exposure warnings,” “wood dust exposure warnings,” “furniture product exposure warnings,” “diesel engine exposure warnings,” “vehicle exposure warnings,” “recreational vessel exposure warnings,” “enclosed parking facility exposure warnings,” “amusement park warnings,” “petroleum products warnings,” “service station and vehicle repair facility warnings,” “designated smoking area exposure warnings,” and “hotel exposure warnings.” If you already provide these warnings, you will want to make sure they meet the new requirements. If not, time to get started!

More Details In Warnings

Here is a comparison of the present and future selected consumer products exposure warnings:

Current Warning:

The warning message must include the following language:

  1. For consumer products that contain a chemical known to the state to cause cancer:

“WARNING: This product contains a chemical known to the State of California to cause cancer.”

  1. For consumer products that contain a chemical known to the state to cause reproductive toxicity:

“WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”

See 27 CCR 25603.2.

New Warning:

(a) Unless otherwise specified in Section 25607.1 et seq., a warning meets the requirements of this subarticle if it is provided using one or more of the methods required in Section 25602 and includes all the following elements:

(1) A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”.

(2) The word “WARNING:” in all capital letters and bold print, and:

(A) For exposures to listed carcinogens, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to http://www.P65Warnings.ca.gov.”

(B) For exposures to listed reproductive toxicants, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.gov.”

(C) For exposures to both listed carcinogens and reproductive toxicants, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www. P65Warnings.ca.gov.”

(D) For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www. P65Warnings.ca.gov.”

(E) Where a warning is being provided for an exposure to a single chemical the words “chemicals including” may be deleted from the warning content set out in subsections (A), (B) and (D).

(b) A short-form warning may be provided on the product label using all the following elements:

(1) The symbol required in subsection (a)(1).

(2) The word “WARNING:” in all capital letters, in bold print.

(A) For exposures to listed carcinogens, the words, “Cancer – http://www.P65Warnings.ca.gov.”

(B) For exposures to listed reproductive toxicants, the words, “Reproductive Harm – http://www.P65Warnings.ca.gov.”

(C) For exposures to both listed carcinogens and reproductive toxicants, the words, “Cancer and Reproductive Harm – http://www.P65Warnings.ca.gov.”

(c) A person providing a short-form warning on the product label pursuant to subsection (b) is not required to include within the text of the warning the name or names of a listed chemical.

See 27 CCR § 25603.

For food products, here is a comparison of the old and new requirements:

Current Warning:

(a) For food, other than alcoholic beverages, sold, served, or otherwise provided in food facilities, as defined in Health and Safety Code Section 113789, which is intended for immediate consumption:

“WARNING: Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in foods or beverages sold or served here.”

(b) For fresh fruits, nuts, and vegetables:

“WARNING: This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.”

See 27 CCR § 25603.3(a)-(b).

New Warning:

(a) A warning for food exposures, including dietary supplements, meets the requirements of this subarticle if it is provided via one or more of the methods specified in Section 25607.1 and includes all the following elements:

(1) The word “WARNING:” in all capital letters and bold print.

(2) For exposure to a listed carcinogen, the words, “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to http://www.P65Warnings.ca.gov/food.”

(3) For exposure to a listed reproductive toxicant, the words, “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.gov/food.”

(4) For exposure to both listed carcinogens and reproductive toxicants, the words, “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.gov/food.”

(5) For exposure to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words, “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.gov/food.”

(6) Where a warning is being provided for an exposure to a single chemical the words “chemicals including” may be deleted from the warning content set out in subsections (2), (3) and (5).”

See 27 CCR § 25607.2.

More resources can be found below.

These new provisions make navigating Prop 65’s safe harbor warnings more complex and leave room for missed warnings or those which are not technically compliant. While the existing safe harbor warnings are sufficient for any product manufactured prior to August 30, 2018 but sold later, as per 27 CCR 25600(b), consumer products sellers would be wise to take steps now to ensure their warnings comply with the new Prop 65 requirements before product goes on the shelves around August 30, 2018.  After all, the safe harbor warnings are an effective way to preempt being drawn into costly litigation from so-called “consumer advocacy groups.”  It is also worth considering if a company sells products which do not bear the new warnings after August 30, 2018, you may spend a lot of time and money explaining how 27 CCR 25600(b) applies, and will have to decide whether that time is worth the headaches and aggravation that will follow.

Additional Resources:

For a link to the Table of Contents for the Prop 65 safe harbor warning regulations, see here.

To review the current regulations which remain in effect until August 30, 2018, please see 27 CCR 25603.2 and here.

To see the new regulations which take effect on August 30, 2018, please see 27 CCR 25603 and here.

A link to the current food products warning, which is 27 CCR 25603.3: click here.

A link to the new food warning, which will be 27 CCR 25607.2: click here.

A link to the reg which includes the new internet and catalog warnings, which will be 27 CCR 25602: click here.

Finally, a link to the new reg about who (retailer, manufacturer, packager, etc.) is responsible for providing the warning, which is 27 CCR 25600.2: click here.

 

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