Publication

August 9, 2018Client Alert

Updated Proposition 65 Safe Harbor Warnings to Take Effect August 30, 2018

Entities selling products into the State of California should ensure that they are compliant with the new safe harbor warning regulation under the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65. These new regulations will take effect on August 30, 2018.

Proposition 65 requires the Governor of California to publish, at least annually, a list of chemicals known to the State that cause cancer or reproductive toxicity. Businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone in California to a listed chemical. Proposition 65 allows private litigants to bring suit to enforce the law’s warning requirements. Prior to bringing such a suit, the private litigant must notify the potential defendant and state prosecutors of the alleged violation and its intent to sue 60 days before the suit may be filed. The 60-day notices are posted publicly on the California’s Office of Attorney General’s website.

California’s Proposition 65 regulation sets out the format for what the state considers a clear and reasonable warning by businesses. This safe harbor warning regulation was amended in 2016, when California’s Office of Environmental Health Hazard Assessment (OEHHA) adopted new regulations regarding the manner in which clear and reasonable warnings should be given under Proposition 65, and clarified who has the responsibility to provide such warnings. OEHHA revised the safe harbor warning requirements because it found that the previous regulations lacked the specificity necessary to ensure the public receives useful information about potential chemical exposure.

For products manufactured prior to August 30, 2018, businesses have the option of using the current or the new safe harbor warnings, which are outlined below. Products manufactured after August 30, 2018, should follow the new safe harbor warning requirement in order to avoid the risk of enforcement. However, parties to existing court-ordered settlement or final judgement may continue to provide warnings that comply with those orders. It is important to note that failure to meet the requirements in the regulation does not constitute an automatic violation of Proposition 65. Businesses may use a different warning than those described in the regulation so as long as the warning is “clear and reasonable.”

Responsibility to Provide Warning

Proposition 65 applies to all business, including producers, manufacturers, importer, suppliers, retailers, and distributors, that sell or distribute products containing a listed chemical. Because OEHHA believes that manufacturers have the greatest knowledge regarding a product’s chemical content, manufacturers have the primary responsibility for providing a warning. The new regulation provides three ways that a clear and reasonable warning can be provided on consumer goods and foods:

  • Affix a warning to the product;
  • Provide written notice to a retailer that identifies the product that requires a warning while supplying the warning materials; or
  • Enter into a private contract with a retailer regarding the warning responsibility.

To be effective, the retailer must confirm receipt of the notice in writing. Additionally, the notice must be renewed within six months of the regulations taking effect and subsequently renewed annually. The written notice should also contain the following elements:

  • Statement that the product may result in an exposure to one or more listed chemicals;
  • The exact name or description of the product or specific identifying information for the product such as a UPC; and
  • Include all necessary warning materials such as labels, labeling, shelf signs, or tags, and warning language for products sold on the internet.

Consumer Product Warning Requirements

In general, the new regulation outlines warnings for consumer products that update the warning to state that the product “can expose” a consumer to a listed chemical instead of the product containing a listed chemical. The warning must also contain:

  • The name of one or more listed chemical. If a warning is provided for more than one endpoint (i.e. cancer and reproductive toxicity), the warning must include the name of one or more chemical for each endpoint.
  • The word “WARNING” in bold capital letters.
  • A yellow equilateral triangle with an exclamation point to the left of warning text, unless the label is yellow then the symbol may be printed in black and white.
  • Include the web address for OEHHA’s new Proposition 65 website, www.P65Warnings.ca.gov.
  • A warning in any additional languages that are used on the label in addition to English.

Businesses still have the option to provide the warning via product labels, sign, shelf tags, and shelf signs. The on-product warnings for consumer goods can use either a long or short version, which are described below. Shelf signs must be product specific and posted at each product point of display. Additionally, the regulations provide the flexibility to provide the warning via electronic devices prior to purchase as long as the warning is automatically provided and the purchaser does not need to seek out the warning.

For products sold online, the regulation also explains that a warning must appear on the product display page, through a link clearly marked using the word ‘‘WARNING,” or otherwise provided prior to purchase. Products sold online also have the option of providing the warning through the short or long version of the warning as long as the same warning is provided on the product’s label.

The regulation also allows the warning to contain additional information that supplements the required warnings, but only to the extent that the information identifies the source of the exposure or how to avoid or reduce exposure to the identified chemical or chemicals.

Long Version

The updated regulation provides guidance on how warnings can be provided on a label based upon the type of chemical and endpoint identified. For example, the updated regulation provides the following example warning for a product that contains one or more listed carcinogens and reproductive toxicants:

WARNING: 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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.

Short Version

The regulations also allow companies to shorten the warning on a product label, and do not require a specific chemical be listed. For example:

          WARNING: Cancer - www.P65Warnings.ca.gov.

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

          WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov.

These warnings must be the same type size other consumer information on the label, but no smaller than 6-point type.

Warnings on Foods

For foods and dietary supplements, the regulation provides specific guidance on the content and method of transmission for warnings. In general, many of the same principals for consumer goods apply to warnings on foods and dietary supplements, such as the methods of providing the warning and general content requirements. However, foods do not need to bear the yellow triangle warning symbol, but the text must be set apart from other consumer information in a box on the product label. An example warning could be:

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. For more information go to www.P65Warnings.ca.gov.

Foods and dietary supplements requiring a warning cannot use the short version of warnings.

Warnings on Alcoholic Beverages

Retailers and restaurants that serve or sell alcoholic beverages must post the following warning:

WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information to go www.P65Warnings.ca.gov/alcohol.

Similar to foods, the warnings for alcoholic beverages do not need to bear the yellow triangle warning symbol and cannot use the short warning. The warnings can be provided using one or more of the following methods:

  • Entrance: an 8.5 by 11 inch sign, printed in no smaller than 28-point type placed at eye level so that it is readable and conspicuous to customers at each public entrance to the area where the alcoholic beverages are served.
  • Point of Sale: a notice or sign no smaller than 5 by 5 inches, printed in no smaller than 20-point type and enclosed in a box, that is placed at each retail point of sale or display so that it is readable and conspicuous.
  • Menu: a warning on any menu or list of alcoholic beverages, sold on the premise, or on the food menu or list if there is no menu or list identifying the alcoholic beverages served on the premise.
  • Delivery Package: for alcoholic beverages sold or distributed through a delivery service, the warning should be on the shipping container or package in a type size no smaller than the largest type size used for other consumer information on the product, and in no less than 8-point type.

Warnings in Restaurants

The new regulation also provides very specific content and method of transmission requirements for food and non-alcoholic beverage exposure warnings for restaurants. The following warning should be displayed when a restaurant determines that consumption of its food or beverage products will expose consumers to listed chemicals at levels above the safe harbor limits:

WARNING: Certain foods and beverages sold or served here can expose you to chemicals including acrylamide in many fried or baked foods, and mercury in fish, which are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/restaurant.

Similar to the warnings for foods alcoholic beverages, the restaurant warnings do not need to bear the yellow triangle warning symbol and cannot use the short version of the warning. The restaurant warnings can be provided using one or more of the following methods:

  • Entrance: an 8.5 by 11 inch sign, printed in no smaller than 28-point type placed at eye level so that it is readable and conspicuous to customers at each public entrance to the area where the alcoholic beverages are served.
  • Point of Sale: a notice or sign no smaller than 5 by 5 inches, printed in no smaller than 20-point type, that is placed at each retail point-of-sale or display so that it is readable and conspicuous.
  • Menu: a warning on any menu or list of food or non-alcoholic beverage offerings, in a type size no smaller than the largest type size used for the names of general menu items.

Contact your Michael Best attorney to learn more about how this approaching compliance date may affect your business.

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