As of today’s date, businesses have only 6 months to comply with the newly-amended Clear and Reasonable Warnings regulations in California’s Proposition 65 (Prop 65), which take effect on August 30, 2018. We posted a 1-year reminder here, which discusses the history of Prop 65, the new requirements in the regulations, and the potential increase in enforcement litigation stemming from alleged noncompliance.
Substantively, the Prop 65 amendments repeal all provisions of the Article 6 regulations, except certain provisions added via an emergency rulemaking in April 2016 related to warnings for exposures to bisphenol A in canned foods and beverages. The amended Clear and Reasonable Warnings regulations in Article 6 include new requirements for:
- Specific content language of warnings;
- How those warnings are transmitted to consumers, including on product labeling, warnings on signs and shelf tags (where the warning is not affixed to each product);
- Products made available via the Internet; and
- Notification requirements from manufacturers who ship products in bulk to retailers.
Any time from August 30, 2016 until August 30, 2018, businesses may comply with the prior regulations currently in effect, or they may comply with the newly amended regulations. Given the impending August 30, 2018 deadline, many businesses have already started to prepare and shift their operations to comply with the new Prop 65 requirements. These time-consuming preparations include designing product packaging and shelf tags with the new safe harbor warnings on them; notifying retailers of the warnings and requirement to display such warnings as provided by the manufacturer, or re-testing products to confirm whether they contain one of the 900 listed chemicals regulated under Prop 65.
It is imperative that businesses understand the risks and complexities associated with the requirements in amended Prop 65 Clear and Reasonable Warnings regulations and comply before August 30, 2018. Prop 65 allows citizens to seek penalties and recover their attorney’s fees for a business’s failure to comply with Prop 65. Accordingly, there are an increasing number of plaintiff’s lawyers in California focused solely on Prop 65 enforcement litigation who are ready to pursue more enforcement actions when the new amendments become effective.