Manufacturers Would Be Primarily Responsible For Providing Warnings
- Public comment closes tomorrow on new Prop. 65 warning regulations being considered by OEHHA, available on its website at www.oehha.ca.gov/prop65/CRNR_notices/WarningWeb/pdf/ProposedArticle6_cleartext.pdf If adopted, the proposed regulations would become effective two years later.
- The draft regulations seek to minimize the burden on retailers by putting the primary responsibility for providing Prop. 65 warnings on manufacturers, importers and distributors. Retailers would still be responsible for providing warnings where:
- Product’s brand or trademark is owned or licensed by the retailer.
- Retailer has covered or obscured the Prop. 65 warning.
- Retailer has received warning materials from the manufacturer or distributor, and has sold the product without warning.
- Retailer has actual knowledge of potential chemical exposure requiring warning, and there is no manufacturer, distributor or importer subject to Prop. 65 with an agent for service of process in the United States. Actual knowledge may be presumed two days after receipt of a 60-day notice of violation. Retailers are lobbying OEHHA to increase this to 10 days
Warnings Would Specifically Name Certain Chemicals
- The draft regulations provide that for exposure to the following twelve chemicals, a clear and reasonable warning must list the chemical:
- Carbon monoxide
- Chlorinated tris
- Hexavelent Chromium
- Methylene Chloride
- The draft regulations allow for the use of a label warning or a product-specific shelf sign at each point of display. For Internet purchases, the warning must be provided by a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before completing their purchase.
- Retailers could continue to use any warning currently in use, but the draft regulations provide that the following language has been approved as clear and reasonable, appearing next to a yellow warning triangle with black exclamation point.
WARNING: This product can expose you to a chemical[s] known to the State of California to cause cancer [or birth defects or other reproductive harm or cancer and birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov/product.
- Where names of chemicals are required to be included:
WARNING: This product can expose you to a chemical[s] such as [name or names of chemicals] that is [are] known to the State of California to cause cancer [or birth defects or other reproductive harm or cancer and birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov/product.
- A label warning could appear directly on the product using the following language, and would not be required to include the names of the chemicals above. The word “WARNING” must be no smaller than 10-point type, and the rest of the warning must be no smaller than 8-point type:
WARNING: Cancer – www.P65Warnings.ca.gov/product
WARNING: Reproductive Harm – www.P65Warnings.ca.gov/product
WARNING: Cancer and Reproductive Harm – WWW.P65Warnings.ca.gov/product