California's Proposition 65 ("Prop 65") requires product manufacturers and sellers to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone in California to a chemical listed by the California Office of Environmental Health Hazard Assessment (OEHHA) as known to cause cancer, birth defects or other reproductive harm. A great deal of controversy and confusion has developed over the years as to what constitutes a "clear and reasonable" warning under Prop 65. As such, Prop 65 contains a safe harbor provision wherein a product manufacturer or seller may protect itself by placing warnings specified in the regulations on its products. If the warning comports with the safe harbor provisions, it is deemed "clear and reasonable."
In May 2016, Stinson Leonard Street reported on the history of Prop 65, along with proposed amendments to it under consideration by the OEHHA. See, <a data-cke-saved-href="http://www.stinson.com/Resources/Insights/2016_Insights/California_s_Proposition_65__History_and_Proposed_Amendments_in_2016.aspx" href="http://www.stinson.com/Resources/Insights/2016_Insights/California_s_Proposition_65__History_and_Proposed_Amendments_in_2016.aspx" target="_blank" title="" california's="" proposition="" 65:="" history="" and="" proposed="" amendments="" in="" 2016."="" "="">"California's Proposition 65: History and Proposed Amendments in 2016."On September 2, 2016, the OEHHA adopted many of the proposed amendments to Prop 65's safe harbor provisions. While the amendments may help clear up some confusion regarding the "clear and reasonable" warning requirements, it is anticipated that the newly adopted changes to Prop 65 may have the effect of increasing litigation, including the notorious "bounty hunter" lawsuits1, against any company that sells products and/or provides services in California.
Warnings on nonfood products must contain a symbol with a black exclamation point in a yellow equilateral triangle with a black outline ("the symbol"):
The warning should also contain the word "WARNING" in all capital letters and bold type ("the warning identification");
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Warnings must identify one or more chemicals for each potential health effect (i.e. cancer, birth defects, reproductive harm).
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Warnings on product labels can be shortened to only include the symbol and warning identification discussed above, a statement that the product can expose the user to one or more chemicals that can cause cancer, birth defects and/or reproductive harm (but it does not need to list the specific chemicals), and a link to the new OEHHA website.
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Product-specific warnings may be provided via electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the product.
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THE BURDEN ON PRODUCT MANUFACTURERS OR SUPPLIERS
PRIOR COURT-ORDERED SETTLEMENTS/CONSENT JUDGMENTS
NEXT STEPS
1. As an enforcement mechanism, Prop 65 contains a “bounty hunter” provision whereby private parties, without alleging any exposure to a listed chemical, may sue businesses to enforce Prop 65’s warning provisions. If successful, the plaintiff may recover 25% of any civil penalties imposed on the company, along with attorneys’ fees and costs.
