Starting on August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, or Proposition 65 (“Proposition 65”). The proposition was originally enacted with the goal of protecting California’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform consumers in California about exposures to such chemicals. Proposition 65 also requires the Governor of California to publish and periodically update a list of known carcinogens and reproductive toxins. To date, almost 1,000 substances appear on this list.
On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65. The new regulations require businesses with 10 or more employees to give “clear and reasonable” warning to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins. The warnings must provide more detailed information to the public, including a clear statement that a person “can be exposed” to a Listed Chemical, the names of the Listed Chemicals that are the subject of the warning, and a link to a website maintained by the California Office of Environment Health Hazard Assesment containing supplemental information. There are also 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.
Proposition 65 also clarifies requirements of the manufacturer, producer, packager, importer, supplier or distributor of a product to either affix a warning on the product, or provide directly to the authorized agent for a retail seller, written notice which 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 product 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 is then responsible for the placement and maintenance of the warning materials, particularly if the retailer is selling the product under its own brand, the retailer itself is responsible for introducing a Listed Chemical into the product, or the retailer has covered, obscured, or altered a warning label affixed to the product.
Before Proposition 65 becomes effective in 2018, businesses will have the option to comply with the current regulations or the new regulations. Warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable. Under the current 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. However, businesses may want to begin planning for the new regulations, particularly if the company is contemplating introducing new products to the California market, or is contemplating other changes to the labels on existing products.
A current list of chemicals under Proposition 65 may be found here.