What Occurred? On August 30, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) released final amendments to the Proposition 65 warning regulations.
Who is Affected? New warning standards could apply to any products sold in California or to any business operations in California. Warning rules are changing for manufacturers, distributors and retailers. For the first time, specific rules govern warnings for internet sales.
What is the Effective Date? The new warning standards apply to products manufactured on and after August 30, 2018. Between now and then, one may still use warnings which comply with the existing 2008 regulations.
Manufacturers and Others Must Provide Warnings. The new regulations impose primary responsibility for providing warnings on product manufacturers, producers, packagers, importers, suppliers or distributors. They must either affix warnings on the products or on product labels or provide notice and warning materials to “the authorized agent” for a retailer. Detailed terms regulate how manufacturers may ask retailers to warn.
New Retailer Obligations to Provide Warnings. A retailer can be liable for failure to warn for the retailer’s private label products or where the retailer:
- Has received warning materials from an upstream party and failed to provide the warnings; or
- Knowingly introduced a listed chemical to be created in or added to a product; or
- Modified or obscured a product’s label warning; or
- Has “actual knowledge” of the potential consumer exposure requiring the warning (and note such knowledge can “arise” upon receipt of a 60 Day Notice of Intent to Sue Letter); and
- If no upstream person in the product supply chain is subject to Proposition 65.
For internet sales, new rules require the internet seller to provide a warning prior to completion of check out. There is some flexibility on how and when the warning is provided.
Is There New Warning Text for Specific Exposures? Yes. OEHHA developed specific warnings for exposures to listed chemicals in foods, alcoholic beverages sold at retail stores, foods and alcoholic beverages sold at restaurants, prescription drugs, emergency dental and medical care, non-emergency dental services, raw wood products, furniture, diesel engines, vehicle purchases, recreational vessels, enclosed parking facilities, amusement parks, petroleum products, service station and vehicle repair facilities and designated smoking areas. OEHHA reports it is still developing unique text for hotels and apartment building warnings.
The Content And Transmission Of “Safe Harbor” Warnings Will Change Dramatically. Most persons are familiar with the “safe harbor” warning text deemed “clear and reasonable” under the 2008 regulations: “WARNING: This product contains a chemical known to the State of California to cause cancer and birth defects or other reproductive harm.” Going forward, OEHHA’s position on what constitutes a “safe harbor” changes.
On-Product Warnings. The new regulations do not require identification of a specific chemical. There are three versions of on-product label warnings. There is one for carcinogens, one for reproductive toxicants and one form of warning for both carcinogens and reproductive toxicants:
WARNING: Cancer – www.P65Warnings.ca.gov.
WARNING: Reproductive Harm – www.P65Warnings.ca.gov.
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.
Signs, Label and Internet Warnings. The new regulations also impose material changes to warning text on shelf signs and on certain internet warnings. These warnings also can be used on the product. One key change is that one or more listed chemicals must be identified by name. If the listed chemical identified by name is not both a carcinogen and reproductive toxicant, then two chemicals must be listed by name (one for cancer and one for reproductive harm) if the warning text includes both the “cancer and birth defects or other reproductive harm” language. OEHHA abandoned the idea that the only chemicals which must be identified by name were those 12 chemicals identified in earlier drafts of these regulations. Following is one example for the cancer and reproductive harm warnings (which may not be suitable for use in all circumstances):
WARNING: This product can expose you to chemicals including [name one or more listed chemicals] which [is/are] known to the State of California to cause cancer and [name one or more listed chemicals] which [is/are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.
Care must be taken to match the warning text and the listed chemical(s) for which the warning is given.
General Additional Considerations. This notice focuses on consumer product warnings. OEHHA also updated the environmental exposure warning text. Environmental exposures are those that occur in an area (e.g., inside a business, at a gasoline station). The new regulations are complex and may sow confusion, especially during the two year transition period when we expect many different forms of warning to appear.
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work.
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