The California Proposition 65 law requires businesses to notify consumers in the state of California about significant amounts of chemicals in the products they purchase. Businesses that expose individuals to listed chemicals through their products or operations generally must provide warnings on labels or signage. The California OEHHA (Office of Environmental Health Hazard Assessment) has updated the Proposition 65 regulations in Title 27, California Code of Regulations, Section 25600. These updates which will come into full effect August 30, 2018, superseding the previous requirements. The revised regulations have made substantial changes to California’s Proposition 65 safe harbor warnings. California authorities have enacted these new changes in order to better inform the public on the specific chemicals triggering the warnings and to improve the ability to protect themselves. The previous Proposition 65 warning did not report the chemical(s) prompting the warning. The updated warning also includes a link to the website (www.P65Warnings.ca.gov) which was created to provide easy accessibility to information on the chemicals and products associated with the warnings. By August 2018, the old warning requirements will expire and be replaced with a more useful, informative system.
The previous warning on product labels or signage adjacent to the product stated the following: “WARNING: This product contains a chemical known to the State of California to cause cancer [or reproductive harm].” The new standard will include a triangular symbol next to the word “WARNING”, at least one listed chemical that triggers the warning, and the internet address for OEHHA’s new website. For example:
"WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”
For those businesses that market products in California, a review of the Proposition 65 list should be conducted to determine whether its operations or products are likely to expose people in California to any listed chemicals which have been determined to be carcinogenic or cause reproductive toxicity. OEHHA has developed numerical guidance levels, known as “safe harbor numbers," for determining if a certain product sold in California requires a warning statement. A business is exempt from the Proposition 65 warning requirements if exposure to a listed chemical occurs at or below these “safe harbor” levels. However, if a product fails to include a warning when it meets the Proposition 65 criteria to require one, penalties can be as high as $2,500 per violation per day. A business may choose to use other warning methods and content (e.g., statements other than the standard Prop 65 warnings); however, the business might have to defend the warning in legal proceedings if it were challenged by a public or private enforcer as not being clear and reasonable.
It should also be noted that products manufactured before August 30, 2018 will not require the new warnings if the product warnings comply with the requirements valid at time of production.
The new regulations also provide more clarification for businesses on the methods of providing warnings. For example, safe harbor warnings are required for internet purchases. The consumer must be provided the warning prior to purchasing the product on the internet site. A guidance document provided by OEHHA states the following: “For a website warning, if a label is used for a product warning, a business may opt to provide a hyperlink to the warning or a picture of the warning label used on the product” (Prop 65: Clear and Reasonable Warnings; Questions and Answers for Businesses). The new regulations also provide guidance on warnings in languages other than English. If the label or packaging reports information to consumers in languages in addition to English, the Proposition 65 warning should also be provided in that language along with the English translation.
In 2016, new regulations regarding Proposition 65 were published, but have remained optional until the August 2018 deadline when they will become the required standard. There are obligations regarding the updated system that must be followed. The regulations state that if a business “is providing a warnings for both cancer and reproductive toxicity, the warning must include the name of one or more chemicals for each endpoint” (Prop 65: Clear and Reasonable Warnings; Questions and Answers for Businesses). In addition, a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline will be included in the updated warning. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING."
If a business sells products to consumers in California, it is imperative that the business determine if a warning is required, and if so, provide a warning that is compliant with the new Proposition 65 regulations in order to avoid legal issues from both the public and private sector.
knoell USA can help you determine what your company’s obligations regarding the implementation of the updated Proposition 65 warning requirements. We can help identify if your product contains chemicals present on the Proposition 65 list, assist in determining if the product meets the exposure criteria for a warning, and author a compliant warning for the label or package.