California’s New Prop. 65 Warning Regulations Put Primary Burden for Providing Warning on Manufacturers

April 11, 2017

Companies that do business in California should be familiar with Proposition 65, which prohibits knowingly and intentionally exposing consumers to a chemical known to the state to cause cancer or reproductive harm without first providing a “clear and reasonable” warning. What constitutes a clear and reasonable warning is changing. New warning regulations take effect on August 30, 2018.1 Businesses can choose to comply with either the current or new regulations in the interim, and products labeled with a warning prior to the effective date of the regulations can continue to rely on that warning.

Prop. 65 was passed by California voters in 1986 as a prohibition against discharging harmful chemicals into drinking water. It also includes a consumer products provision that has resulted in the labeling or posting of signs providing a warning that products contain a chemical listed by California’s Office of Environmental Health Hazard Assessment (OEHHA) as causing cancer or reproductive harm. There are currently more than 800 naturally occurring and synthetic chemicals listed, and new chemicals are added every year. The most frequently alleged violations concern lead and phthalates. Violations are subject to statutory penalties of up to $2,500 per violation per day.

582

Number of Prop. 65 settlements in 2015, the most recent year available for a summary of settlement payments on the California Attorney General’s website.

$45,063.16

Average amount of Prop. 65 settlement payment in 2015, including civil penalty and attorneys’ fees and costs.

703

Number of 60-day notices of violation, the precursor to bringing a Prop. 65 action, served in 2016 and alleging exposure to lead.

Companies that manufacture, sell or distribute products in California that may contain a chemical listed under Prop. 65 should consider the following:

  • New 60-day notices of violation, which are a precursor to bringing a Prop. 65 action, are available on the California Attorney General’s website.2 The notices appear in a database that is searchable by chemical, product, plaintiff and defendant. Monitoring the 60-day notices can indicate trends in what chemicals and products are currently being targeted by plaintiffs.
  • For about one-third of the listed chemicals, safe harbor levels have been established.3 Exposure below these levels does not require a warning. The safe harbor levels do not set the chemical limit for a particular product, which is typically established through settlement agreements and consent judgments, also reported on the Attorney General’s website.
  • Toxicology labs can help identify the chemicals for which a product should be tested based on product materials, and also recommend test protocols. Labs also monitor the chemical limits for particular products established through settlement agreements and consent judgments.
  • The new regulations seek to put the primary responsibility for providing warnings on product manufacturers or suppliers, who must either label their products with any required warnings or provide notice and warning materials to retailers.
  • A retailer can still be held responsible for failure to provide a required warning for the retailer’s private label products or where the retailer has
    • knowingly introduced or caused a listed chemical to be created in a product ;
    • covered, obscured or altered a product’s warning label;
    • sold the product without a warning despite receiving notice and warning materials from the manufacturer;
    • actual knowledge of potential consumer exposure requiring a warning, and there is no manufacturer who is subject to Prop. 65 (has 10 or more employees) and a place of business in California or a designated agent for service of process in California. Actual knowledge will be presumed within five days of receiving a 60-day notice of violation
  • The warning can be provided on product packaging, labeling, or through a shelf sign at the point of display. The important thing is that the warning is likely to be read and understood by the consumer prior to exposure.
  • For internet sales, the new regulations require, for the first time, that a warning be provided on the product display page, or a clearly marked hyperlink using the word “WARNING.”
  • The regulations also require for the first time that a warning list the name of one or more chemicals for which the warning is being provided, use a symbol involving an exclamation point in a equilateral triangle, and include OEHHA’s website on Prop. 65. The warning should state:

  WARNING: This product can expose you to chemicals including [one or more listed chemicals] which is [are] known to the State of California to cause cancer [and/or birth defects or other reproductive harm]. For more information, go to www.P65Warnings.ca.gov.

  • Warnings on product labels can be shortened as follows, and do not require that a specific chemical be listed. They must appear in the same size as other consumer information, and in no less than 6-point type.

WARNING: Cancer – www.P65Warnings.ca.gov/product

WARNING: Reproductive Harm - www.P65Warnings.ca.gov/product

  • For food products, the warning should state:

WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause cancer [and/or birth defects or other reproductive harm]. For more information, go to www.P65Warnings.ca.gov/food.

  • There are separate warning requirements for alcoholic beverages sold at retail stores; food and alcoholic beverages sold at restaurants; prescription drugs; dental care; raw wood products; furniture products; diesel engines; vehicles; recreational vessels; enclosed parking facilities; amusement parks; petroleum products; service station and vehicle repair facilities; and designated smoking areas.

1. Title 27, Cal. Code Regs., Art. 6, §§ 25601 et seq.

2. https://oag.ca.gov/prop65/60-day-notice-search

3. https://oehha.ca.gov/proposition-65/general-info/current-proposition-65-no-significant-risk-levels-nsrls-maximum