Proposition 65: August Deadline Looming for OEHHA’s Amended Proposition 65 Clear and Reasonable Warning Requirements

Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C.

There are less than five months before the effective date of the California Office of Environmental Health Hazard Assessment (OEHHA) revisions to its Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations.  By August 30, 2018, companies must comply with the revised regulations for consumer product, occupational, and environmental exposures.  While some companies have already revised warning requirements prior to this deadline, and an exception permits the prior warning language on consumer products manufactured before August 30, 2018, there remains a large majority of consumer products and other exposure scenarios that require detailed review and development of revised policies and warnings to ensure compliance with the new requirements. 

Information related to OEHHA’s past actions modifying Prop 65 warning regulations, including the August 28, 2016, adoption and the December 7, 2017, amendments, is available on our website, key phrase Proposition 65.  A side-by-side comparison of the old and new regulations, updated to reflect the December 2017 amendments, is a helpful tool provided by OEHHA to demonstrate the extent of the changes.  Some of the major changes that companies must consider are discussed below.

Consumer Product Exposure Warnings -- Content

The most obvious changes are those related to the required warning language.  Cal. Code Regs. tit. 27, § 25603.  These changes include:

  • Adding a new warning symbol, consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline:

OEHHA’s website provides links to download several sizes of the warning symbols required to be included on most safe harbor warnings for exposures to listed chemicals under the new regulations.

Companies should note that the symbol can be printed in black and white if the sign, label, or shelf tag for the product is not printed using the color yellow, even if other colors are used.

  • Changing the warning language to state that the product “can expose you” to the Prop 65 chemical.
  • Identifying the name of one or more of the listed chemicals for which the warning is being provided.  When the warning is being provided for more than one endpoint (cancer and reproductive toxicity), the warning must include the name of one or more chemicals for each endpoint, unless the named chemical is listed as known to cause both cancer and reproductive toxicity and has been so identified in the warning. 

Below is a comparison of the warning requirement for consumer products before the 2016 amendments and after:

Companies must review all the consumer products for which they provide warnings and determine how they will meet this new regulatory requirement on a product-by-product basis depending on whether there is one or more chemicals for which warning is required and the bases for each such warning.

Consumer Product Exposure Warnings -- Short-Form Warning

Section 25603(b) now provides a “short-form” on-product label as an acceptable alternative to the revised requirements for consumer product exposure warnings.  OEHHA previously referred to this as the “on-product” warning but changed the term because the term “on-product” was confusing to some stakeholders to the extent it appeared to refer to a new warning method as opposed to a different warning content.

This option requires the hazard symbol, the word “warning” in capital letters and bold print -- WARNING, and a reference to OEHHA’s website, but importantly does not require a company to name a listed chemical within the text of the warning.  With regard to the website reference and warning language, the short-form warning must contain one of the following:  (1) for consumer products that cause exposure to listed carcinogen(s), the words “Cancer --”; (2) for consumer products that cause exposure to listed reproductive toxicant(s), the words “Reproductive Harm --”; or (3) for consumer products that cause exposure to both a listed carcinogen and a reproductive toxicant, the words “Cancer and Reproductive Toxicant --”

Under this option, the entire warning must be in a type size no smaller than the largest type size used for other consumer information on the product.  In no case shall the warning appear in a type size smaller than six-point type.  Regarding the circumstances as to when it is permissible to use the short-form Prop 65 warning, and how that warning can be communicated, we note the following:

  • Although OEHHA stated in its Initial Statement of Reasons that it believed the short-form warnings would be used more in cases when the full warning could not fit, OEHHA’s later guidance confirms that there is no limitation regarding the size of the package that can have a short-form warning.
  • The prior reference to this as an “on-product” warning might have implied that the warning had to be printed on the product, however, OEHHA has clarified that printing the warning on the label or packaging is permissible.

Companies should consider whether this short-form warning language is a desirable option for some or all of their consumer products.

Consumer Product Exposure Warnings -- Foreign Language Requirements

Although OEHHA’s prior Prop 65 regulations contained no requirements with regard to providing warnings in languages other than English, the new regulations (Section 25602(d)) state the following with regard to consumer product exposure warnings:  “Where a sign or label used to provide a warning includes consumer information about a product is provided in a language other than English, the warning must also be provided in that language in addition to English.”  “Consumer information” is defined (Section 25600.1(c)) to include warnings, directions for use, ingredient lists, and nutritional information and to exclude the brand name, product name, company name, location of manufacture, or product advertising.  The revised regulations also set forth language requirements for environmental exposure warnings and for certain specific product, chemical, and area exposure warnings (e.g., food, amusement parks).  A short-form warning also must be in any alternative language(s) used to provide consumer information on a label, sign, or shelf tag.

In response to comments expressing concern that these requirements as first proposed would require manufacturers to know what languages their retailers use to provide warnings, OEHHA clarified that the “alternative language warnings will be triggered based only on information provided for that particular product.”  Final Statement of Reasons (FSOR) at 96.  Thus, “where a product manufacturer or other business in the chain of commerce is not aware that a retail seller provides consumer information in other languages, the retail seller should be responsible for providing the warnings in those languages to the extent they are required.”  FSOR at 213.

To the extent feasible, OEHHA plans to post approved translations for commonly used words on its website.  OEHHA’s website now contains translations for examples of various Prop 65 warnings in nine languages other than English: Spanish, French, Chinese (simplified), Chinese (traditional), Hmong, Cambodian, Vietnamese, Tagalog, and Korean.  It is unclear if or when OEHHA will provide additional translations, however.

With regard to the exact warning language and possible different translations, OEHHA states the following:

OEHHA agrees that there could be minor differences between various translations of Proposition 65 warnings. Rarely if ever is there only one correct way to translate a communication into another language. Even relatively simple translations require the translator to make decisions regarding word choices and restructuring translated sentences in ways that are clear to readers of the other language. It is not OEHHA’s intent to stipulate only one way to translate a warning or prevent translators from using their professional judgment. As long as the translation is reasonable and is sufficiently clear to the reader, it would comply with the requirements of the regulations.  FSOR at 213.

Consumer Product Exposure Warnings -- Method of Transmission

Companies also must review the methods of transmission they currently use for warnings and determine whether those methods are still valid and/or whether they wish to employ a new method of transmission.  Section 25602.

While the revised regulations expand the list of acceptable methods for providing a warning via electronic means, the revised regulations also make clear that the warning must be provided to the purchaser “prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning.”  For Internet purchases, the warning must be provided to the purchaser prior to completing the purchase, which entails a warning separate from the warning that is provided on the consumer product. 
Warning Responsibility:   There are potentially complicated supply chains that can raise issues regarding who is responsible for providing a warning, and the amended regulations set forth new requirements if a business intends to comply with warning requirements by providing written notice to its retail seller.  Section 25600.2.  Generally, retail sellers are responsible for the placement and maintenance of warning materials, including warnings for products sold over the Internet, only when the manufacturer, producer, packager, importer, supplier, or distributor of a product provides written notice that:

  • States that the product may result in an exposure to one or more listed chemicals.
  • Includes the exact name or description of the product or specific identifying information for the product such as a Universal Product Code or other identifying designation.
  • Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet (i.e., no time-lag between receipt of the notice that a warning is required, and receipt of the warning materials themselves).
  • Has been sent to the authorized agent for the retail seller, and the manufacturer, producer, packager, importer, supplier, or distributor has obtained confirmation electronically or in writing of receipt of the notice. 

OEHHA provides requirements regarding the content and timing of such written notice, and also sets forth the specific circumstances when the primary responsibility for providing the consumer product warning is on the retail seller.  Any company with an arrangement to have a retail seller or other entity provide a Prop 65 warning for its product(s) must review that arrangement and determine if current procedures comply with the revised regulations. 
New Specific Product, Chemical, and Area Exposure Warnings:  There are new regulations providing tailored methods for transmission of warnings and warning language for several products, chemicals, and area exposures.  Sections 25607-25607.29.  These are:

  • Food (including dietary supplements);
  • Alcoholic beverages;
  • Food and non-alcoholic beverages in restaurants;
  • Prescription drugs;
  • Dental care and emergency medical care;
  • Furniture;
  • Diesel engines;
  • Passenger vehicles or off-road vehicles;
  • Recreational vessels;
  • Parking garages;
  • Amusement parks;
  • Petroleum products;
  • Service stations and vehicle-repair facilities; and
  • Designated smoking areas.

Any company that has warning obligations related to any of these scenarios must review and ensure compliance with the specific warning requirements.

[View source.]

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.

© Bergeson & Campbell, P.C. | Attorney Advertising

Written by:

Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C. on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.