California Proposition 65 Compliance Deadline Approaching Fast: Updated Requirements for Warning Labels on Products Manufactured on or After August 30
The upcoming deadline to comply with newly revised California Proposition 65, otherwise known as the, “Safe Drinking Water and Toxic Enforcement Act of 1986,” is August 30th. Proposition 65 (California Health and Safety Code, section 25249.6 et seq.) requires that persons doing business in California must provide a “clear and reasonable warning,” to individuals before exposing them to chemicals known to the state of California to cause cancer, birth defects or other reproductive harm. A list of these 900 chemicals is found on the Office of Environmental Health Hazard Assessment website here: https://oehha.ca.gov/proposition-65/proposition-65-list. The amount of a particular substance necessary for it to be considered harmful is also found on the OEHHA website. Californians have seen these warnings before. Warnings on products manufactured on or after August 30th, however, must comply with a stricter, more comprehensive set of criteria. These new requirements pertain to the transmission of a warning, meaning how it is stamped, printed or otherwise made clear to consumers, as well as its content. It is important to note that the responsibility to comply with these requirements, found in Article 6, Sub article 2 (Safe Harbor Methods and Content) belongs to the seller of the product and not the manufacturer. The revision is meant to provide more practical information to consumers. Warnings must now specify the names of harmful substances in a product along with their potential effects on the human body. Before this revision, non-specific warnings were sufficient. A new standardized symbol is also necessary, so be on the lookout for a, “black exclamation point in a yellow equilateral triangle with a bold black outline,” on your next cup of coffee.
Proposition 65 defines warning requirements for retailers, restaurants and any other businesses operating in California, and these requirements vary depending on the type of seller and type of product. For example, a webpage used to facilitate an internet purchase must display a hyperlink using the word, “WARNING,” that is clearly visible to the purchaser. This hyperlink then takes the purchaser to a much more detailed warning that must meet further conditions. For some goods sold in-store, a warning is generally considered compliant if it is product-specific and follows at least one of the following requirements: 1) It is provided on a sign for the consumer at each point of the product’s display, 2) It is provided automatically via an electronic device or process that does not need to be sought out by the consumer, or 3) It is printed on the product’s packaging in a certain font size following the written formula or script laid out in Section 25602, Article 6 of the act.
Proposition 65 also includes the requirements for environmental exposure warnings. The inhalation of formaldehyde from the air in a warehouse is an example of environmental exposure. To warn consumers of these dangers, businesses or persons must display clear and visible signs as well as maps that mark the affected area(s) they are responsible for. The specific requirements for these warning methods are found in Section 25604.
Proposition 65 is enforced by the California Attorney General’s Office, district attorneys and some city attorneys. If a private individual acting in the public interest provides a 60-day notice to these attorneys and to the business allegedly in violation, and the public attorneys do not act on it, the private individual may bring a lawsuit against the business. Penalties for non-compliance can reach up to an expensive $2,500 per day, per violation. Private enforcers, such as the Council for Education and Research on Toxics (CERT,) are able to receive 25% of civil penalties in addition to their attorneys’ fees and costs, which provides a financial incentive for private parties to file these lawsuits. The California environmental lawyers at Bick Law LLP will continue to monitor this topic as well as other developments surrounding Proposition 65 warnings.