We are seven weeks away from the California Proposition 65 amendments adopted in 2016 going into full effect, including substantial changes to the wording and format for providing warnings, new guidance on providing warnings for website purchases, and tailored warnings for certain exposure scenarios (such as restaurants), as well as important new provisions regarding the division of responsibility for providing warnings among retailers, manufacturers, distributors, and others in the supply chain. August 30 marks the two year anniversary of issuance of the revised warning regulations and the end of a transition period during which either the prior or new “safe harbor” warning requirements could be utilized to ensure compliance. As of August 30, only the new “safe harbor” warnings can be relied upon to avoid potential challenge for failure to provide a “clear and reasonable warning.” Also on that date, for the first time, the new provisions addressing retailer liability, and the obligations of manufacturers and other suppliers seeking to pass on warning responsibilities, become effective.
To briefly recap, the major new provisions include:
(1) First and foremost, the familiar old Prop 65 signs (on right below) will give way to a more detailed warning, including the newly required posting of the yellow triangle “warning symbol,” identification of at least one specific chemical for which the warning is provided, a statement that the product “can expose” the consumer to the chemical (and not simply that the product “contains” a listed chemical), multi-lingual labeling, and reference to the Prop 65 website:
For exposure to carcinogens: “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. For more information, go to www.P65Warnings.ca.gov.”
For exposure to reproductive toxins: “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 birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”
For exposure to both carcinogens and reproductive toxins: “WARNING: This product can expose you to chemicals including [name of one or more listed chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”
(2) New abbreviated “on-product” warnings for consumer goods.
(3) Specific “safe harbor” warnings for the certain products or exposure scenarios: Food; Alcoholic beverages; Restaurants; Prescription drugs; Dental care and emergency medical care; Raw wood; 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.
(4) For internet purchases, the safe harbor warning must be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the website product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. Guidance from the Prop 65 implementing agency, the Office of Environmental Health Hazard Assessment (OEHHA), earlier this year clarifies that in addition to the website warning, the consumer also must be receive the warning through the traditional methods related to sale of consumer products (e.g., a warning also must appear on the product label or be provided in another format).
(5) In terms of clarifying retailer/manufacturer responsibility, the new provision provides manufacturers (and others in the supply chain) with two basic options: (1) affix an appropriate warning to the product; or (2) provide written notice to the retailer regarding the required warning for the product. The manufacturer (or other suppliers) then must obtain confirmation of the retailer’s receipt electronically or in writing. If a retailer fails to post or obscures or alters a warning when the manufacturer has provided it, only then will liability potentially fall on the retailer for failing to warn consumers.
Keep in mind that the amendments did not alter the more fundamental question of how a business decides whether to provide a warning, but rather only relate to how that warning is provided.
A detailed overview of the 2016 amendments is available here: https://www.kelleydrye.com/News-Events/Publications/Client-Advisories/WARNING-California%E2%80%99s-Proposition-65-Warning-Requi. In addition, OEHHA sent an email blast yesterday with a catalog of guidance materials available for businesses, including the agency’s own overview of the new regulations and links to informative FAQs and Q&As: https://www.p65warnings.ca.gov/new-proposition-65-warnings.