After many years of debate, consideration and public input, California’s new regulations go into effect on August 30, 2018, under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 − commonly known as Prop 65. This is the first major update to the Act in more than 30 years. The stated purpose is to provide “clear and reasonable” warnings and more detailed information to consumers. The new rules will be applicable to all products manufactured after August 30, 2018. Manufacturers may still use existing warning labels, but only for products that were manufactured before August 30, 2018. Although the new regulations become mandatory after August 30, 2018, they can be used now.

Critical among the new state regulations is the requirement for a more detailed warning, specifically identifying the chemical and the possible harm, whether it is cancer, birth defects or reproductive harm.

The regulations apply to businesses with 10 or more employees.

The regulations require that a pictograph accompany the warning in the form of a black exclamation point in a yellow triangle with a black outline.

The warning must be printed in at least a 6 point font and no smaller than the largest font size used for other consumer information contained on the product.

The following language is required:

WARNING: THIS PRODUCT AND EXPOSURE TO CHEMICALS INCLUDING [ONE OR MORE OF THE LISTED CHEMICALS] WHICH [IS/ARE] KNOWN TO THE STATE OF CALIFORNIA TO CAUSE [CANCER AND/OR BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM]. FOR MORE INFORMATION, GO TO www.P65Warnings.ca.gov.

The new regulations require that manufacturers ship their products with the warning labels attached or the warnings must be provided to the retailer with written confirmation of receipt by the retailer given to the manufacturer.

For internet listings and sales and purchases, the new regulations require that the warning label be contained on the product display page together with a hyperlink to www.P65Warnings.ca.gov.

The warning also must be provided on products sold through the internet.

If a product is sold in markets where warnings are provided in languages other than English, then the warning must similarly be provided in that language other than English.

The warning must be renewed annually or within 90 days of when a different or additional listed chemical or risk of harm is included, whether that is cancer, birth defect or reproductive harm.

Exceptions

Subject to a court-ordered settlement or final judgment, the warning language from that court-ordered settlement or final judgment can be used in lieu of the standard language. In addition, there are certain specific categories of exceptions such as for food, alcohol and raw wood.

More details on these new requirements can be obtained from the California Office of Environmental Health Hazard Assessment (OEHHA) at the website www.P65Warnings.ca.gov.

It is important for all manufacturers and retailers selling into California to have their Prop 65 warnings reviewed and evaluated for compliance with the new regulations, which become effective on August 30, 2018. For more information on this topic, please contact us.