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Final Changes to Proposition 65 Warning Regulations

The California Office of Environmental Health Hazard Assessment, after a myriad of proposals, hearings, and workshops, has now issued final regulations that significantly revise how Proposition 65 warnings are to be provided.  Although intended to clarify the law and reduce lawsuits by private plaintiffs, it is likely that the opposite will occur.  The final regulation is available here and the Final Statement of Reasons supporting the regulation is available here.

Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, has two primary components: (1) a prohibition on contaminating drinking water and (2) a requirement that products containing chemicals known to the State of California to cause cancer or reproductive toxicity or birth defects include a warning of exposure to those chemicals.  It is the second element of the law-the warning requirement-that has been the most prominent over the nearly 30 years that Proposition 65 has been in effect and has generated thousands of actions by private plaintiffs.

Under the new regulations, which will not take effect until August 18, 2018, the warning requirement will be more prescriptive than is currently the case.  Further, although intended to minimize the burden on retailers-and place the bulk of responsibility for compliance with the warning requirement on product manufacturers, producers, packagers, importers, suppliers, or distributors- there remain a number of scenarios where the retailer will remain liable for failure to warn.

The revised warning regulations are very detailed and specifically address various types of consumer products.  However, there are also general provisions that apply to all products.  Some of the more notable requirements include the following:

    • As with the current regulations, the revised regulations require “clear and reasonable” warnings and prescribe “safe harbor” language that will presumptively be deemed compliant with the law.

 

    • There are four primary ways to warn:  (1) product-specific warnings provided on posted signs, shelf tags, or shelf signs, (2) warnings for products sold over the internet, (3) warning labels on the product, and/or (4) on-product warnings.

 

    • All warnings must  include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline: warning-symbol  The symbol is to be placed to the left of the text of the warning language, and cannot be smaller than the height of the word “WARNING” that must also be part of the warning language.

 

    • For exposures to listed reproductive toxicants, the language must be:  “WARNING:  This product can expose you to chemicals including [name of the chemical or chemicals at issue] 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 exposures to listed carcinogens, the language must be:  “WARNING:  This product can expose you to chemicals including [name of the chemical or chemicals at issue] which is [are] known to the State of California to cause cancer.  For more information go to www.P65Warnings.ca.gov.”

 

    • For exposures to both listed carcinogens and reproductive toxicants, the language must be:  “WARNING:  This product can expose you to chemicals including [name of the chemical or chemicals at issue] which is [are] known to the State of California to cause cancer, and [name of the chemical or chemicals at issue] 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.”

 

    • On-product warnings do not require reference to the specific chemical(s) at issue, but all of the other elements of the warnings noted above are required.

 

    • For internet purchases, the warning language must be included on the display page, or there must be a clearly marked hyperlink using the word “WARNING” that links to the warning language.

 

    • With respect to canned and bottled foods and beverages that contain bisphenol A, the warning will be compliant with Proposition 65 if the manufacturer, producer, packager, importer, or distributor (1) affixes a label that states:  “WARNING:  This product contains a chemical known to the State of California to cause birth defects or other reproductive harm” or (2) provides notice to the retailer, either directly or through the retailer’s authorized agent or trade association to the retailer, that states the canned or bottled food or beverage may result in exposure to bisphenol A, including a specific description, such as a UPC, and offers to provide to the retailer point-of-sale warning signs.  The point-of-sale sign must state the following:  “WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system.  Jar lids and bottle caps may also contain BPA.  You can be exposed to BPA when you consume foods or beverages packaged in these containers.  For more information go to:  www.P65Warnings.ca.gov.BPA.”

 

    • With respect to warnings for environmental exposures, the warning language must be in English and any other language used on other signage in the affected area.  Similarly, where a warning is required for food products, if a food product sign, label, or shelf tag used to provide a warning includes a language other than English, that language, along with English, must be included in the warning.

 

  • Specific warning requirements are set forth for other products as well, including alcoholic beverages, furniture products, raw wood products, diesel engine exposures, vehicle exposures, recreational vessels, amusement parks, enclosed parking facilities, and petroleum products.