Beginning on August 30, 2018, the amended regulations will take effect for what constitutes a clear and reasonable warning under California’s Safe Drinking Water and Toxic Enforcement Act, better known as Prop 65. Prop 65 requires businesses with 10 or more employees to provide a “clear and reasonable warning” before “knowingly and intentionally” exposing any person to a “a chemical known to the state to cause cancer or reproductive toxicity.” The failure to comply with Prop 65 subjects manufacturers, distributor and retailers to potential liability, including penalties of up to $2,500 per day, per violation, as well as injunctive relief and attorney fees. 

Prop 65 does not require a business to reformulate their products to remove Prop 65 listed chemicals from its products or production processes but simply requires that a clear and reasonable warning be given to any consumer in California exposed to the chemical. It provides how the warning must be given and what language should be used in the warning statement. The current requirements for Prop 65 permit generic warning language, such as: “WARNING: This product may contain a chemical known to the State of California to cause cancer or birth defects or other reproductive harm.” A business’s requirements to comply with Prop 65 will change beginning August 30, 2018.

What are the new consumer product exposure warning methods and content?

The amended Prop 65 regulations still require a warning label on products that include any of the almost 900 chemicals identified by the Office of Environmental Health Hazard Assessment (OEHHA) on the Prop 65 list if they are above the safe harbor level identified by OEHHA. The amended regulations, however, change the form and content required for the “safe harbor” warning provided to California consumers. Some of the more significant changes in the labeling requirements include: 

• The warning must include a black exclamation point in a yellow equilateral triangle with a black outline.
• The word “WARNING” must appear in bold print and in all capital letters.
• The warning must include the full chemical name of at least one chemical found in the product that is identified by OEHHA that is known to cause cancer or birth defects or other reproductive harm. If the product contains a chemical on both lists, at least one chemical from each list must be identified.
• An example of the “new” safe harbor warning should read as follows:

WARNING: 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] [or] [birth defects or other reproductive harm]. 

For more information, visit www.P65Warnings.ca.gov

• If a warning is placed on the product, a short form warning is permitted that does not need to name the identified chemical (but the triangle and “WARNING” are still required).
• An on-product “short form” warning must appear in a type size in at least 6-point type and must be a type size no smaller than the largest font size used for other consumer product information affixed to the product. A short-form warning label may be used on any size product.
• An example of a compliant truncated short-form “on product” warning should read as follows:

WARNING:
Cancer and Reproductive Harm—
For more information, visit www.P65Warnings.ca.gov

• Consumer products sold over the internet must provide a warning on the website to the consumer prior to completing the purchase and include a short-form warning on the product or full warning on the label meeting the requirements discussed above.
• If a consumer product label or packaging contains consumer information in a language other than English, the Prop 65 warning must also be provided in that language in addition to English.
• The amended regulations provide specific warning methods and content for certain products (including food, dietary supplements, alcoholic beverages, furniture) and types of exposures (including restaurants, dental care, wood dust, diesel engine, enclosed parking facility, amusement parks, service stations, hotels).

In sum, the new Prop 65 regulations still require a warning label be placed on any consumer product that contains a chemical identified by OEHHA to cause cancer or reproductive harm. However, while the current regulations allow for a “generic” label, the amended statute requires a label specifically identifying at least one chemical found in the product (unless a short-form on product warning is used).

Who must provide a Prop 65 warning?

OEHHA’s new regulations place the primary responsibility for providing the requisite Prop 65 warning on product manufacturers, producers, packagers, importers, suppliers and distributors. Businesses must either (1) label the product with the required warning or (2) provide notice and warning materials to the authorized agent for the retail seller and receive an acknowledgement that the notice and materials were received.

How can your business get compliant with the new regulations?

Businesses can use either the current or new regulations on products manufactured prior to August 30, 2018, at which time compliance with the new regulations will be required. Businesses must first determine whether any products sold to consumers in California include any of the chemicals identified by OEHHA requiring a Prop 65 warning label. Laboratory testing may be required to determine which, if any, Prop 65 chemicals are in each product. Even if your business currently labels products with a Prop 65 warning, the new regulations will require a determination of whether to use the truncated short-form warning label or the full warning label on each product. If the full warning will be used, each product will need a specific label identifying at least one of the chemicals identified by the business on OEHHA’s Prop 65 list.