California voters enacted the Safe Drinking Water and Toxic Enforcement Act (“Proposition 65”) In 1986. The law requires warnings for potentially dangerous chemicals that may cause cancer, birth defects, or other reproductive harms. Thirty-two years later, Californians are now well accustomed to seeing these warnings on consumer products, and virtually everywhere they go.
These warnings have become nearly ubiquitous in California because they are required for any product containing any one of almost 900 listed chemicals, or for any discharge exposing the public to such chemicals. More specifically, a warning label is required if the chemical included has either a 1 in 100,000 chance of causing cancer over a 70 year period, or unless it may be said that exposure to 1000 times the amount of the chemical within the product has no observable effect on reproductive health. For example, these warning labels appear on products that range from industrial solvents and commercial cleaners to sunglasses and organic nutrition bars. A California court even ruled that a Proposition 65 warning is required for Starbucks coffee because it contains trace amounts of acrylamide.
A typical warning currently reads: “This product/area contains chemicals known to the State of California to cause cancer and birth defects, or other reproductive harm.”
New Regulations Effective in August, 2018
Manufacturers nationwide, and California businesses, should take note of new regulations recently promulgated by the California Office of Environmental Health Assessment (OEHHA). Beginning in August of 2018, Proposition 65 warning requirements will become more strict and specific. Rather than just the generic warning that a harmful chemical may be present, the new regulations require that warning labels must specifically identify one of the listed chemicals prompting the warning. Additionally, the warning must identify potential harms with specific language, as emphasized in this example: “WARNING: This product can expose you to chemicals, including Acetamide, which is known to the State of California to cause cancer.”
If your product or workplace currently displays Proposition 65 warnings, you must update those warnings by identifying at least one specific chemical prompting the warning. In some cases, it may be relatively easy to identify a chemical prompting the warning. For example, you might identify a listed chemical on the packaging of cleaning agents, or you might learn through a Google search that a product contains chemicals known to the State of California to present cancer or birth defect risks. But in other cases a business might not be able to identify what chemical is prompting its warning. In the past, many small businesses posted generic Proposition 65 warnings to avoid the threat of trolling lawyers, without really giving thought to what chemicals they are actually using. These businesses, in particular, might struggle with the new requirements and or might ultimately decide that they are not using any product that should trigger a Proposition 65 warning; however, they can expect greater clarity as manufacturers begin updating their product labels to comply with the new requirements.
Caution Symbols and Weblink Requirements
In addition to requiring greater specificity in the written text (and “WARNING” in all-caps), the new rules require that Proposition 65 warnings must include a yellow caution sign in most cases. Additionally, warnings must include the following web address for consumers who want more information: www.p65Warnings.ca.gov.
OEHHA provides an example and further guidance here.
Separate Carcinogen and Reproductive Harm Warnings
If there are multiple chemicals within the product that are on California’s list as a potential carcinogen, only one must be listed. The same is true if there are multiple chemicals that California identifies as presenting some risk of birth defects. However, if there are multiple chemicals, some of which are listed as carcinogens, as well as others that are listed for causing potential birth defects, then one chemical from each list must be included in the warning, along with the reason it is listed (I.e., X can cause cancer, and Y can cause reproductive harm).
When are Non-English Labels Required?
If non-English consumer information is included on the final product, the new regulations require non-English Proposition 65 warnings. For example, if a small business manufacturer is using the same labels on products sold throughout the United States and Canada its products will contain labeling information in both English and French. Accordingly, they must include Proposition 65 warnings in both languages.
Likewise, businesses posting signs warning that chemicals may be present in their facilities must post in multiple languages if they display other signs in foreign languages. For example, an auto mechanic shop may need to post Proposition 65 warning labels in English, Spanish and Vietnamese if it has signs or other materials on display in Spanish and Vietnamese.
Warnings for Products Sold Online
Internet retailers should take note that OEHHA’s new regulations require Proposition 65 warnings for products sold online if those products contain chemicals that would prompt a warning on their label. The requirement is that the consumer must see the following text (with a hyperlink to www.p65Warnings.ca.gov) on the product display page within their internet browser: WARNING!
What are the Size Requirements?
Proposition 65 requires that warnings must be clear and reasonable. The new regulations provide specific size requirements in some cases, but in other cases OEHHA says simply that the warning must be prominently displayed. OEHHA says:
* For signs warning of environmental exposures in a place of business, the warnings must be displayed at all entrances to the affected area and must be at least 72 point font.
* For on-product signs, the warning must be no smaller than the largest type size for other consumer information on the product. But in no case may the on-product warning be smaller than 6-point font. (OEHHA allows an alternative shortened warning for on-product labels, which K&L Gates addresses here).
* All other signs must be displayed with such conspicuousness as compared to other words, statements, designs, or devices on the label or sign as to render the warning “likely to be read, seen, and understood by an ordinary individual.”
What Happens if I Do Not Update Proposition 65 Warnings?
Technically the new requirements come into effect in August 2018; however, they merely guarantee a safe harbor against lawsuits. We can most definitely expect a steep uptick in Proposition 65 lawsuits when the new regulations go into effect because trolling lawyers will be looking for businesses and products that have failed to make these changes. But if a business does not update it may still potentially have a defense if it can argue that it gave a sufficiently clear and reasonable warning. OEHHA’s guidance makes clear that businesses are not required to comply with its safe harbor regulations: “Businesses have the option to provide different warnings if they believe they comply with the law.”
What Does this Mean for Small Business?
The new regulations clarify that the primary burden of Proposition 65 compliance is on manufacturers and those companies packaging products sold in California. This means that liability for retailers should be limited. Specifically, to qualify for safe harbor, retailers are required to acknowledge receipt of any labeling materials from the manufacturer or distributor and to post Proposition 65 warnings where provided.
Meanwhile, manufacturers may need to work with a chemist to identify specific chemicals within their products to create Proposition 65 compliant labels. Likewise, companies packaging and distributing products for use and consumption in California should proactively work with manufacturers to identify chemicals that may prompt a Proposition 65 warning, and to update existing product labels.
All other businesses must continue to provide Proposition 65 warnings for “environmental exposure” when they are using products containing listed chemicals, or otherwise discharging such chemicals. OEHHA provides guidance if you are unsure as to whether you should be posting a warning. NOTE: There is an exception for businesses with 9 or fewer employees.