On August 30, 2018, significant updates to California’s Proposition 65 regulations went in to effect, potentially impacting all businesses that operate in California including, but not limited to, those that sell products in the state. The new regulations dramatically update the requirements for providing warnings deemed to comply with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The implementation of these new regulations is likely to increase Proposition 65 enforcement actions, where violations can result in statutory penalties as high as $2,500 per day, per violation. As a result, businesses seeking to issue Proposition 65 warnings guaranteed to comply with the statute, and thus avoid costly enforcement actions, need to update their Proposition 65 warning labels and signs if they have not already done so.

BACKGROUND -

California’s Proposition 65 requires the Office of Environmental Health Hazard Assessment (OEHHA) to publish a list of chemicals known to the State to cause cancer or developmental or reproductive toxicity. The list is updated annually and has grown to include over 800 chemicals. The law requires businesses offering products or services in California that expose any person to a listed chemical above a threshold level to provide a “clear and reasonable” warning prior to such exposure. Given the breadth of the statute, it impacts any business that manufactures or sells a product that could reach California and any business that owns or operates a facility in California, including businesses in the retail, food, automotive, medical, and energy sectors. OEHHA’s regulations provide “safe harbor” warnings that businesses can rely upon to comply with the statute. These regulations used to permit businesses to comply with the statute by using generic warning language, but, in 2016, OEHHA passed significant revisions to these regulations for the first time since the 1980s. These new requirements, which require more specific warnings, went into effect on August 30, 2018 for products manufactured on or after that date.