You Have Been Warned: Changes Coming to Proposition 65 Requirements
By Procopio Associate Hazel Ocampo G.
New Proposition 65 warning requirements will come into effect August 30, 2018, requiring that entities doing business in California provide additional details in product warnings. The new regulations require additional content and specify the method of warnings for certain environmental exposures, industries, and products, e.g. food/alcohol. The new regulation also requires that warnings be provided prior to persons completing the purchase of items via the internet, and clarifies the respective duties of retailers and manufacturers.
Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act, generally requires that warnings be provided before persons are exposed to chemicals known to cause cancer or reproductive toxicity. (Cal. Health & Safety Code § 25249.5 et seq.). Penalties for violations can be up to $2,500 per day, per violation. (Cal. Health & Safety Code § 25249.7, subd. (b).) Businesses with 10 or more employees must adhere to the new warning requirements when they cause significant exposures to any of the listed chemicals (approximately 900) which are known to cause cancer or are toxic to reproductive health.
Some of the changes to Proposition 65 coming into effect August of 2018 include:
1. Warnings for Consumer Products
Warnings for consumer products must now say that the product can expose persons to a Proposition 65 chemical, and must include (Cal. Code Regs., title 27, § 25603):
- The word WARNING in all capital letters and bold font;
- The name of the listed chemical for which the warning is being provided;
- The words “Cancer” and/or “Reproductive Harm” on the warning;
- The Internet address of the new Proposition 65 warnings website; and
- A triangular yellow warning symbol on most warnings.
Sample New Consumer Product Warning (triangle must be equal in height to the WARNING text):
2. Method of Transmitting Warnings
Consumer product warnings must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared to other words, statements, designs, or devices on the label, labeling, or sign, as to render the warning “likely to be read, seen, and understood by an ordinary individual under the customary conditions of purchase or use.” (Cal. Code Regs., title 27, §25601, subd. (c).) Consumer product warnings may be provided on a posted sign at each point of display, via an automated electronic device, or on a label. (Cal. Code Regs., title 27, §25602).
The warning for internet sales must be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. (Cal. Code Regs., title 27 § 25602, subd. (b).)
Environmental exposure warnings, e.g. from designated smoking areas, parking garages (that have clearly defined entrances) must post a warning sign at all public entrances to the affected area no smaller than 72-point font. (Cal. Code. Regs., title 27, § 25604). The warning must clearly identify one or more sources of exposure, be provided in a conspicuous manner and under such conditions as to make the warning likely to be seen, read, and understood by an ordinary individual in the course of normal activity. (Id.) An environmental exposure is one that results from contact with an environmental source, e.g. air, water, or by ingestion, or other contact with the body. (Cal. Code. Regs., title 27, § 25600.1, subd. (f).)
3. Warnings in Additional Languages
The new regulation clarifies that where the sign or label that provides the warning includes information about the product in English and in another language, e.g. Spanish, the warning must also be provided in both English and Spanish. (Cal. Code Regs., title 27, § 25602, subd.(d).)
4. Tailored Warning for Certain Industries
The new regulation also provides specific warning requirements, e.g. content and method of transmission for certain industries including restaurants, hotels, amusement parks, vehicle service stations, dental offices, furniture stores, and recreational vessels.
5. Retailer/Manufacturer Obligations Clarified
The new regulation minimizes the burden on retail sellers of consumer products to the extent practicable regarding the provision of clear and reasonable warnings, placing the burden on the manufacturer, except where the retail seller itself is responsible for introducing a listed chemical into the product. (Cal. Code Regs., title 27, § 25600.2). The manufacturer, producer, packager, importer, supplier, or distributer of the product may comply with the new regulation by either providing a warning on the product label or by providing a written notice directly to the authorized agent for a retail seller who is subject to the warning requirements. (Id.)
The new regulation can be found here.
If you are concerned that your business is or will become subject to the new regulations, we encourage you to review the warnings being provided to ensure that they will be compliant with the changes coming into effect in August of 2018. If you need help navigating compliance, we encourage you to contact Hazel Ocampo at firstname.lastname@example.org, or by phone at 619-515-3298.
Hazel Ocampo G. is an Environmental Associate at Procopio, representing clients on a variety of regulatory matters, enforcement actions, and project permitting. She regularly represents clients subject to enforcement by private citizens and government agencies regarding the Clean Water Act, the Clean Air Act, the California Environmental Quality Act (CEQA), the Endangered Species Act, Superfund, Universal and Hazardous Waste regulations and Proposition 65.