New amendments to California Proposition 65 (“Prop 65”) regulations took effect on Aug. 30, 2018. With limited exceptions, the amendments place the responsibility of compliance exclusively on non-retail businesses in the product supply chain, including manufacturers, distributors, producers, packagers, importers and suppliers. The amendments significantly alter “safe harbor” warning requirements by, for example, requiring that the warning: (1) identify at least one chemical that prompted the warning, (2) provide a link to the California Prop 65 website and (3) include a triangular yellow and black warning symbol. The amendments also impose new, detailed warning requirements for product catalogs and websites engaged in internet sales.
Prop 65, enacted as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California right-to-know law that requires businesses to provide Californians with warnings regarding potentially harmful exposure to specific chemicals listed by the California Office of Environmental Health Hazard Assessment (“OEHHA”). A product may be subject to Prop 65 if: (1) the product contains one or more chemicals on the “Prop 65 List” and (2) the end-user of the product will be exposed to the chemical(s) in quantities exceeding the OEHHA-listed exposure thresholds (usually expressed as “recommended exposure levels”).
Given the variety of businesses involved in the process of getting a product out into the market, Prop 65 potentially affects every business in the chain of commerce or product supply chain. The amended regulations make clear that the onus of compliance falls squarely on the non-retail businesses involved in the production, supply, packaging, manufacturing or distribution of a product that enters California. Accordingly, businesses that do not necessarily sell or distribute products into California may nonetheless be subject to Prop 65 regulations if the business is in the chain of commerce for a product that enters California and is required to provide the requisite “clear and reasonable” warning.