New Proposition 65 Chemical Exposure Warning Regulations Set to Take Effect August 30, 2018

What is Proposition 65?

The Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as “California Proposition 65,” requires businesses with ten or more employees that sell to Californians, or who are active within California, to provide “clear and reasonable” warnings on products containing hazardous chemicals. This required warning provides notice to Californians so they can make informed decisions about the products they purchase and the places they visit. The required disclosures apply to chemicals that are known by California to cause cancer, birth defects, or other reproductive harm.

A list of over 900 hazardous chemicals is published each year by the Office of Environmental Health and Hazard Assessment, the California agency that administers Proposition 65. Any person who violates or threatens to violate the prohibition of knowingly discharging chemicals into sources of drinking water, or who fails to provide adequate warnings to California residents, is liable for a civil penalty of up to $2,500 per day for each violation.

What is a “clear and reasonable” warning and how do the new regulations change that standard?

Recent Proposition 65 regulations clarify the standards that a warning must meet in order to satisfy the “clear and reasonable” requirement. Generally, a warning is likely to be considered “clear” if it is determined to clearly communicate that the product contains a chemical known to the State of California to cause cancer, birth defects, or other reproductive harm. A warning is likely to be considered “reasonable” if the method employed to transmit that warning is determined to be reasonably calculated to reach the consumer prior to exposure. A warning must be both clear and reasonable to be in compliance with the Proposition 65 regulation.

Prior to August 30, 2018, the warning did not need to specifically name the chemical which gave rise to the warning. However, legislators decided that these warnings did not adequately inform Californians about the hazardous nature of the chemicals within those products. Therefore, the new regulations aim to increase the specificity of the information necessary for a valid safe harbor warning.

Beginning on August 30, 2018, the regulations will require that the warning provide the specific name of one or more of the listed chemicals in the consumer product or the affected area for which the warning is being provided. If the warning is for both cancer and reproductive toxicity, then the warning must include the name of one or more chemicals for both the carcinogen and the reproductive toxicant.

In addition to the above, the consumer product exposure and/or environmental exposure warning must be prominently displayed in a conspicuous manner so that any individual would have the ability to see, read, and understand the warning in the course of normal daily activity. In the case of a customer product exposure warning, the warning must be prominently displayed on a label, labeling, or other sign.

How can a business ensure it falls within the safe harbor provided by OEHHA?

The California Code of Regulations provides specific safe harbor language guidelines for consumer product exposure warnings, environmental exposure warnings, and food exposure warnings. Additionally, the new regulations provide businesses with the exact warning language to use for the following categories of warnings: alcoholic beverage exposure, food and beverage exposure for restaurants, dental care exposure, furniture product exposure, diesel engine exposure, vehicle exposure, recreational vessel exposure, enclosed parking facility exposure, amusement park exposure, petroleum products, and service station and vehicle repair facilities.

If a specific warning is not provided for in the regulations, then one must be created using the regulation’s guiding principles. The warning must consist of this symbol [] placed before the word “WARNING,” followed by the applicable warning language: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cancer. For more information go to www.P65Warnings.ca.gov.” This language would be altered if the product contains reproductive toxicants. While businesses are not required to use the specific warning language provided, it is the best way to know that the safe harbor applies.

Recognizing that some products may be too small to include the entire warning on the product itself, the legislators have permitted use of a short-form version. However, this short form may only be placed on the product. This exception does not apply to other product warnings, such as product inserts or retail signage.

Who is responsible for providing customer product exposure warnings?

Under the new regulations, the manufacturer, producer, packager, importer, supplier, or distributor of a product is responsible for providing a warning on the product label or providing a written notice directly to the authorized agent for a retail seller. The primary responsibility lies with the manufacturer since it introduces the chemical into the product and has more knowledge of the chemical content of the product itself. However, the OEHHA states that the new regulations do not prohibit required businesses from contracting amongst themselves about how to manage the imposed warning responsibilities.

When a party delegates this responsibility to the retail seller, the written notice must:

• (a) State that the product may result in an exposure to one or more listed chemicals;
• (b) Include the exact name or description of the product;
• (c) Include all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet; and
• (d) Have confirmation electronically or in writing of the receipt of the notice to the retail seller.

When given this information, the retail seller is responsible for placement and maintenance of warning materials, including warnings for products sold over the internet. A retail seller can also be directly responsible for providing exposure warnings when it, rather than the manufacturer or other party in the chain, knowingly introduces the chemical into the product.

If you think Proposition 65 may apply to your business, contact a C&G Business Law attorney to discuss your specific situation and what steps you can take to ensure compliance with the new regulations.