California Proposes to Clarify Prop 65 Requirements for Internet and Electronic Sales

Kelley Drye & Warren LLP

On January 31st, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed amendments aimed at clarifying certain provisions of the Proposition 65 warning regulations governing internet, electronic, and catalog sales.  The proposal comes in response to ongoing questions about the requirement in the current regulations (i.e., the “safe harbor” warning provisions of Article 6 that were substantially updated in 2016) to provide a warning both on the internet site where a product is sold (or in a hard copy catalog) and with or on the product when delivered to consumers.  However, the proposed amendments do not in fact alter the “dual warning” approach for internet sales.

Instead, the new proposal would make the following modest clarifications to the safe harbor warning regulations:

•  Specify that “internet sales” include purchases through mobile device applications;

•  Clarify that the option to provide a warning “by electronic device or process” is intended to apply to in-store product purchases at a physical retail location, and that this provision is unrelated to the requirements for warnings provided online for internet purchases;

•  Make clear that the tailored warnings provided in the regulations for specific products (such as for food, alcoholic beverages, and furniture) apply to internet and catalog sales; and

•  Expressly state that the requirement to provide warnings in alternate/foreign languages applies to the tailored product-specific warnings.

In addition, the amendments would clarify the warning requirements for on-line and catalog sales of alcoholic beverages.

Remember that the “safe harbor” warning regulations are not mandatory, but, rather, prescribe warning text and methods that are considered de facto compliant.  Businesses can use other means of communicating a warning, or different text, but, if so, they run the risk of a plaintiff challenging the sufficiency of the warning as “clear and reasonable.”

Further information on the newly proposed amendments is available here.  OEHHA is taking comments on the proposal until March 16.

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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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