On August 30, 2016, after a long drawn-out and contentious regulatory process, California’s Office of Environmental Health Hazard Assessment (OEHHA) finally adopted revisions to the clear and reasonable warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 and codified as California Health and Safety Code section 25249.5 et seq. These new warning requirements will have an impact on virtually every business selling or distributing products in California. The new warning requirements will be effective on August 30, 2018, until then, the old warnings will suffice. The new warning requirements will require businesses that sell products in California to provide much more detail to consumers than in current warnings.
Overview of Proposition 65
Proposition 65 applies to all businesses with 10 or more employees doing business in California. It requires that any person exposed to one or more of the 900 chemicals on the Proposition 65 list first receive a warning that the state has determined the chemical in question may cause cancer, birth defects and/or reproductive harm.1 If a person in the course of doing business knowingly and intentionally exposes any individual to a listed chemical without giving a “clear and reasonable” warning, he or she may be subject to civil penalties and/or injunctive relief. See Cal. Health & Safety Code § 25249.6. The Proposition 65 list contains many chemicals that are found in common household and office products, toys, jewelry, food, drugs, dyes, pesticides, solvents, etc. Listed chemicals may also be used in manufacturing and construction, or they may be by-products of production or combustion processes.
Significant Changes to the “Clear and Reasonable” Warning Requirements
Some of the more significant changes in the new warning requirements include the following:
- Specific chemical identification in the warning;
- On-product labeling directing consumers to a new Proposition 65 warning website;
- Specific direction of the appearance, location, and language of warning (e.g., warnings must state “can expose” instead of “contains”);
- Non-English language warnings where appropriate;
- Additional and revised product-specific warnings; and
- Internet and catalog product warnings.
Under the new warning requirements, businesses must specifically identify at least one chemical for each endpoint (cancer and/or reproductive toxicity) covered by the warning. Businesses are not required to list every chemical for safe harbor protection under the regulations. See Cal. Code Regs. Tit. 27, § 25601(b). By contrast, under the old warning requirements it was sufficient for a warning to simply state that a product contained “chemical[s] known to the state of California” to cause cancer and/or reproductive toxicity without specifically calling out the chemical(s). See Cal. Code Regs. Tit. 27, § 25603.2 (now abrogated).
Warning Appearance, Location, and Language
The new warning requirements also provide businesses with further direction on the appearance, location and language of the warning. Warnings must now include “a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline.” See Cal. Code Regs. Tit. 27, § 25603. The symbol with the exclamation point and triangle must be “placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING.” Id. The word “WARNING” must still be capitalized, but it must also now be prominently displayed in bold font. Id. And for non-English speaking consumers, “[w]here a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English.” See Cal. Code Regs. Tit. 27, § 25602(d).2
The new warning requirements also include additional and revised product-specific safe harbor warnings, applicable to food, alcoholic beverages, restaurants, furniture, raw wood, dental care, prescription drugs, and others. See Cal. Code Regs. Tit. 27, §§ 25607.1–25607.29.
Internet and Catalog Sales
Finally, the new regulations impose warning requirements to address products sold over the Internet. See Cal. Code Regs. Tit. 27, § 25602(b). For Internet sales, a satisfactory warning must include either the standard product warning discussed above or it must include “a clearly marked hyperlink using the word ‘WARNING’ on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase.” Id. Notably, on-product warnings or warnings that the customer “must search for…in the general content of the website” are not sufficient to insulate a business from liability. Id. Similarly additional requirements are applied under the new warning requirements to products sold via catalog, requiring warnings to be “provided in the catalog in a manner that clearly associates it with the item being purchased.” See Cal. Code Regs. Tit. 27, § 25602(c).
Who’s Responsibility to Provide Warning
Either the manufacturer, producer, packager, importer, supplier, or distributor of a product can provide the warning. See Cal. Code Regs. Tit. 27, § 25600.2(b). Alternatively, “written notice” can be provided to the authorized agent for the retailer, effectively shifting the responsibility for the warning to the retailer. Id. However, it should be noted that the “written notice” alternative includes significant requirements in order to be effective.
The written notice must satisfy four criteria: (1) state that the product may result in an exposure to one or more listed chemicals; (2) include the exact name or description of the product or specific identifying information for the product such as the UPC or other identify designation; (3) include all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for product sold on the internet; and (4) confirmation of receipt of the notice has been received either electronically or in writing. Id. Assuming these four criteria are satisfied, then the notice must be renewed, along with confirmation of receipt, within six months during the first year after August 30, 2018, then annually thereafter during the period in which the product is solid in California by a retailer. See Cal. Code Regs. Tit. 27, § 25600.2(c). Finally, additional notice is required within 90 days when a different or additional chemical name or endpoint is included in the warning. Id.
Two Years to Implement
Businesses have a two-year grace period before the new warning requirements become effective; time in which business can make any changes necessary to comply with the new warning requirements. See Cal. Code Regs. Tit. 27, § 25600(b). As part of that grace period, the new warning requirements provide that businesses may, but need not, comply with the new warning requirements ahead of the effective date, and that any consumer product manufactured prior to the effective date will be deemed to be in compliance with the new warning requirements even after the effective date if the product’s warning complies with the now-abrogated warning requirement. Id.
What to Do Now
Companies that do business in California should begin to assess the potential impact of the new warning regulations now, and develop an implementation strategy. Also, because there is a two-year “grace” period before the new regulations are effective, companies should keep verifiable records of when products are manufactured (so that the manufacture date of products with old warnings can be verified). See Cal. Code Reg. Tit. 27, §25600(b). Once these new warning requirements become effective, we expect to see greater scrutiny from consumers and plaintiffs’ lawyers of Proposition 65 compliance and, inevitably, an increase in private citizen enforcement actions.