California Adopts New Regulations For Warnings Under Proposition 65: CAVEAT VENDITOR (Sellers Beware)

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65.  On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65.  Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins (“Listed Chemical”).¹  Under the existing regulations, a warning is “clear’ if it effectively communicates that the Listed Chemical in question is known to the State of California to cause cancer and/or birth defects or other reproductive harm.  It is “reasonable” if the method used by a business to transmit the warning is reasonably calculated to make the warning message available to the individual before exposure (for a consumer product, before purchase).  The existing regulations provide “safe harbor” guidance regarding types of warning methods and general warning language for various exposures that are deemed “clear and reasonable” under Proposition 65.

 

The new regulations provide more specific guidance on the content of these “safe harbor” warnings, and on the corresponding methods for providing such warnings.  Notably, the new regulations require the warnings to provide more detailed information to the public, including: (a) a clear statement that a person “can be exposed” to a Listed Chemical (rather than just a statement that a product or area “contains” a Listed Chemical); (b) the names of one or more Listed Chemicals that are the subject of the warning; and (c) a link to a website maintained by the California Office of Environmental Health Hazard Assessment (“OEHHA”) containing supplemental information.  The new regulations also establish safe harbor warning methods for internet and catalog sales, requiring that businesses provide the warning on the webpage or in the catalog, as well as on the product.  The new regulations may also require businesses to provide the warning in both English and in one or more foreign languages.  For example, for consumer product exposures, a business must provide the warning both in English and in any other language used on a product’s sign, label or shelf tag.

 

The new regulations also clarify the relative responsibilities for providing consumer product exposure warnings between product manufacturers, producers, packagers, importers, suppliers, distributors and retailers.  The new regulations require a manufacturer, producer, packager, importer, supplier or distributor of a product that is subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet for the products at issue.  The written notice must be renewed annually, or within 90 days when a different or additional Listed Chemical or endpoint (cancer or reproductive toxin) needs to be added to the warning.  

 

The retailer, in turn, is responsible for the placement and maintenance of the warning materials, including warnings for products sold over the Internet, that the retailer receives from a manufacturer, producer, packager, importer, supplier or distributor of a product.  Similarly, the retailer is responsible for providing the warning if: (1) the retailer is selling the product under its own (or an affiliate’s) brand or trademark; (2) the retailer itself is responsible for introducing a Listed Chemical into the product; or (3) the retailer has covered, obscured, or altered a warning label affixed to the product.

 

The new regulation becomes operative on August 30, 2018.  In the interim, business can comply with the current regulations or the new regulations.  Indeed, warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable.  Similarly, a business that is a party to a court-ordered settlement or final judgment establishing a warning method or content is still considered to be providing a “clear and reasonable” warning for purposes of the new regulation, if the warning complies with the order or judgment.  Nonetheless, businesses may want to begin planning for the new regulations, particularly if they are contemplating introducing new products to the market, or are contemplating other changes to the labels on their existing products.

 

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