In August 2016, California’s Office of Environmental Health Hazard Assessment adopted new regulations for consumer warnings under the state’s Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65, that take effect at the end of this month. Proposition 65 is a statute under which companies doing business in California must provide a “clear and reasonable” warning before knowingly and intentionally exposing California residents to products containing any one of approximately 900 chemicals the state has identified as causing cancer, birth defects or other reproductive harm. Businesses have typically provided the required warnings using labels or tags on their products or packaging, or by posting notices with warning language at retail locations where the products are sold. Failure to comply with Proposition 65’s requirements can result in a civil penalty of $2,500 per day for each violation. Proposition 65 also includes a private right of action under which Californians can sue companies for violations, collect civil penalties on behalf of the state and recover their attorney’s fees.

Key changes under the new Proposition 65 regulations include:

  • Warnings now must include the name of one or more of the listed chemicals in the consumer products for which there is an exposure to carcinogens and/or reproductive harm. Warnings also must use the word “expose” rather than “contain,” and most must include a triangular yellow warning symbol.
  • The display page for products sold on the internet must include a warning or a clearly marked hyperlink using the word “WARNING.”
  • Catalogs must include a warning that clearly associates the warning with the product being purchased.

The new regulations also require specific warning language for categories of exposures:

  • For product exposures to listed carcinogens: WARNING: This product can expose you to chemicals including [name chemical(s)], which is [are] known to the State of California to cause cancer. For more information, go to P65warnings.ca.gov.
  • For product exposures to listed reproductive toxicants: WARNING: This product can expose you to chemicals including [name chemical(s)], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to P65warnings.ca.gov.
  • For product exposures to one or more listed carcinogens and reproductive toxicants: WARNING: This product can expose you to chemicals including [name chemical(s)], which is [are] known to the State of California to cause cancer, and [name chemical(s)], which is [are] known to the State of California to cause birth defects and other reproductive harm. For more information, go to P65warnings.ca.gov.
  • For product exposures to one or more chemicals that are listed as both a carcinogen and reproductive toxicant: WARNING: This product can expose you to chemicals including [name chemical(s)], which is [are] known to the State of California to cause cancer and birth defects and other reproductive harm. For more information, go to P65warnings.ca.gov.

The new regulations also allow businesses to use short-form warnings, but only on product labels. The entire short-form warning must be in a type size no smaller than the largest type size used for other consumer information on the product, but under no circumstance can it be smaller than 6-point type. The following short-form warning language can be used for specific categories of exposures:

  • For product exposures to listed reproductive toxicants: WARNING: Reproductive Harm – P65warnings.ca.gov.
  • For product exposures to listed carcinogens and reproductive toxicants: WARNING: Cancer and Reproductive Harm – P65warnings.ca.gov.

Companies that previously settled Proposition 65 liability via a court-ordered settlement or consent judgment may continue to use the product warning language required under their settlements. Additionally, consumer products manufactured prior to August 30, 2018 and labeled in compliance with the earlier Proposition 65 warning requirements do not need to include the new warning language that takes effect on August 30, 2018.