WARNING: New Proposition 65 Requirements Effective August 30, 2018

Greenberg Glusker LLP

Greenberg Glusker Fields Claman & Machtinger LLP

Significant changes to the Proposition 65 warning requirements will soon become effective. Businesses should act now to ensure compliance with these new requirements.

Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive toxicity. New regulations, adopted in August of 2016, revised the old Proposition 65 requirements. These new warning requirements become effective on August 30, 2018.

The new Proposition 65 requirements provide “safe harbor” provisions, which set forth specific warning language and methods of transmission that businesses can use to ensure compliance with Proposition 65. The warning language used depends upon whether the product contains chemicals known to cause cancer, reproductive harm or both. The type of warning required varies whether the warning is being transmitted on signage, electronically or on the product itself.

Departing from the old regulations, the new regulations generally require businesses to list at least one chemical for which the warning is required. For product labels, however, the regulations allow businesses to use a “short-form” warning that does not list any chemicals. Businesses that sell their products online or through catalogs also have additional warning requirements to ensure that the consumer sees the warning before purchasing the product.

Penalties for failing to comply can be steep – up to $2,500 per day for each violation. Businesses that do not comply with Proposition 65’s warning requirements are often targeted for enforcement actions by consumer groups and are at risk for penalties and for plaintiffs’ attorney fees. The best course of action is to ensure that your business falls within Proposition 65’s safe harbor provisions now, before any litigation is filed.

Greenberg Glusker’s Environmental Group is experienced with counseling and defending clients on a variety of Proposition 65 matters. We are available to answer any questions you may have regarding these new regulations, including compliance with the new warning requirements.

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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