Best in Law: New Prop. 65 Warning Rules Hit Shopkeepers in August
By Danielle Sakai and Matthew Collins
Since being adopted by voters in 1986, the Safe Drinking Water and Toxic Enforcement Act, commonly referred to as Proposition 65, has sought to preserve the health and safety of California residents.
Among other things, Prop. 65 requires the state of California to publish a list of chemicals known to cause cancer or reproductive toxicity — a list that has grown to more than 800 from 30. In addition to this listing requirement, Prop. 65 requires any business that has 10 or more employees to provide a “clear and reasonable” warning before knowing and intentionally exposing any Californian to a listed chemical. This is why you see warning signs at gas stations about drinking alcoholic beverages and about second-hand smoke outside office buildings.
Come Aug. 30, regulations adopted by the Office of Environmental Health Hazard Assessment will go into effect seeking to clarify the methods for complying with the act’s “clear and reasonable” warning requirement. Business owners, manufacturers and retailers will be charged with adhering to the new guidelines that the state’s Attorney General’s Office, as well as local prosecuting agencies, will enforce. Among the adopted regulations, there are several key provisions that could impact businesses selling, manufacturing or distributing products in California:
Burden to warn shifted to manufacturers
First, the regulations clarify which entities have responsibility for providing a warning.
According to the rules, the manufacturer, producer, packager, importer, supplier or distributor has primary responsibility for providing a consumer product warning. However, these entities may shift warning responsibility to the retail seller by furnishing notice and warning materials, in accordance with the regulations. The regulations also clarify the circumstances in which a retailer may be responsible for creating warnings, such as where the retailer knowingly introduces a listed chemical into a product.
Key changes to warning content
There are several more key changes to product warning requirements:
- Consumer product warnings will need to state the product “can expose” the individual to a listed chemical, then identify each specific listed chemical for which the warning is being provided. For example, for exposures to listed carcinogens, the warning must state: “This product can expose you to chemicals including [name of one or more chemicals], which is [or are] known to the state of California to cause cancer.”
- Consumer product warning labels will need to contain the signal word “warning,” as well as display a symbol consisting of a black exclamation point in a yellow triangle with a bold black outline.
- Almost all warnings must include a hyperlink to an OEHHA-operated Prop. 65 website. Many of the required hyperlinks are product-specific, ranging from alcohol, furniture and diesel engines, to parking structures and amusement parks.
There are exceptions to some of the above requirements for on-product warnings. For example, as opposed to listing the chemical for which the warning is being provided, on-product labels need only include the words “cancer” and/or “reproductive harm.”
While the regulations do not become operative until Aug. 30, businesses need to start planning now to ensure that, if a warning is required, it fully complies with the new rules and satisfies Prop. 65’s “clear and reasonable” warning requirement. Failing to do so could result in a potential lawsuit and thousands of dollars in fines and penalties.
* This article first appeared in The Press-Enterprise on Jan. 28, 2018. Republished with permission.