California Adopts Amendments to Prop 65 Clear and Reasonable Warnings Regulation

Fri Sep 9th, On Environmental Law, by

California’s three-year effort to improve and clarify Proposition 65 “clear and reasonable” warning requirements has culminated with the adoption of a new regulation proposed by the Office of Environmental Health Hazard Assessment (OEHHA) last November. On August 30, 2016, the Office of Administrative Law approved the adoption of amendments to Article 6, Clear and Reasonable Warnings, of the California Code of Regulations. The new regulation provides, among other things, new and revised Prop 65 “safe harbor” warnings – i.e., methods of transmission and content of warnings deemed to be “clear and reasonable” in compliance with Prop 65. Notably, the emergency rulemaking by OEHHA in April 2016 related to warnings for exposures to bisphenol A (BPA) in canned goods and beverages remains in effect under the new regulation.

Any business that sells products to consumers in California – including out-of-state businesses – that may contain any of the over 800 listed chemicals known to the state of California to cause cancer or reproductive harm should take heed of these changes. Prop 65 requires the state to maintain such a list and is intended to provide the public with notice about exposures to carcinogens and toxins that may be present in everyday products and exposure areas.

The new regulation will be effective on August 30, 2018. In the meantime, businesses may either continue to provide a warning that complies with the current regulation or begin providing a warning that complies with the newly adopted regulation. This two-year transition period is designed to allow a reasonable amount of time for businesses to begin providing warnings under the new provisions. For consumer products manufactured prior to the August 30, 2018 effective date, a warning that complies with the current regulation will be deemed clear and reasonable. This is to allow for products that are already in the stream of commerce prior to the effective date to remain in compliance with the law.

The new “safe harbor” requirements differ significantly form the existing regulation. While it remains non-mandatory guidance on warning content and methods deemed “clear and reasonable” under the law – i.e., businesses still can decide on their own whether a warning is required and, if so, the content or method so long as they can show it is “clear and reasonable” under the statute – it substantially changes the way in which businesses will be able to provide a Prop 65 warning. Whereas businesses currently only need to provide consumers with a general warning about the product containing the chemical, the new regulation sets forth specifications for warning label visibility, font size, and content.

For internet sales, businesses may comply with the regulations either by including the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning prior to completion of purchase. A warning is not prominently displayed if the purchaser must search for it in the website’s general content.

The proposed regulations also clarify the relative burden to warn between manufacturers/importers/suppliers/distributors and retailers, minimizing the burdens on retailers. In particular, where a warning label is not already affixed to the product (and where the retailer is not responsible for introducing the chemical into the product), the retailer must be provided all necessary warning materials, including warning language for products sold on the internet, and receive confirmation of receipt by the retailer. Alternatively, manufacturers will be allowed to make agreements with retailers to allocate legal responsibility for the required warnings.

The new regulation also includes new specific warning requirements for exposures related to the following: food and non-alcoholic beverages in restaurants, prescription drugs and emergency medical or dental care, amusement parks, dental care, diesel engines, furniture products, passenger vehicles, recreational vessels, raw wood products, parking garages, petroleum products, service station and vehicle repair facilities, and designated smoking areas.

Companies conducting business in California would be well-advised to determine whether they are affected by the new changes and, if so, become familiar with them, and adapt accordingly and quickly.

For more information and a copy of the new regulation, please visit http://oehha.ca.gov/proposition-65/crnr/notice-adoption-article-6-clear-and-reasonable-warnings.

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