California – New Prop 65 Product Label Requirements Likely to be Adopted

Alston & Bird

Today, May 17, 2016, OEHHA released a second set of revisions to its proposed regulations to change the warning labeling requirements for Prop 65.  This is the first major change to the words required on product labels and shelf signs and catalogues selling products into California in several decades.  OEHHA has been working on these warning wording and method changes since 2013.  The most recent proposal commenced in November 2015, and has gone through several public comment periods and revisions.  Today’s May 17th revision is probably the last set of revisions before adoption.  Comments are due by June 6, 2016.

To give a broad overview, the current Prop 65 label that everyone is very familiar with looks essentially like this:

Warning Label

The new warning label will look essentially like this:

Warning Label

The big changes are the addition of the yellow triangle, use of bold font for the word warning, the change in the words of the label itself to  “can expose you”, the addition of the name of a chemical or chemicals (this example is “arsenic”) and reference to the new website where consumers can look up more information about the product and its toxic effect.

Given that this May 17 revision are probably the last set, we can expect the adoption of the new warning regs sometime later in 2016.  Thus product manufacturers will need to prepare to replace their old labels with the new labels by sometime in 2018.

This latest set of revisions does remove a few problematic areas that were previously proposed such as a provision allowing manufacturers to provide supplemental information on their warning, a provision requiring that manufacturers make an affirmative finding that the warning is required which would have upended the practice of placing warnings on products to prophylactically prevent lawsuits, and a provision requiring an unduly large font size for retail shelf signs providing the warning.  While these revisions are useful and necessary, the overall proposal will still have a major negative impact on product sellers into California.

Product sellers will need to determine which chemical or chemicals to name in each of their warnings.  Product sellers will need to determine whether they need to provide the warning in languages other than English.  Product sellers will need to determine whether putting the label on prophylactically is now worth the potential risks associated with the new website content requirements.  Overall, with more discretionary decisions and increased vagueness and ambiguity in the warning regulations, the risks for litigation are increased and the stakes are higher for not only the decision of whether or not to apply the warning but a new door for litigation is opened regarding the content of the warning itself.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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