Implementation of Revisions to Proposition 65's Warning Language Requirements is One Year Out
Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires consumer warnings for products that contain one or more of numerous listed chemicals that are known by the State of California to cause cancer or reproductive harm. It applies to all products that knowingly and intentionally result in exposures to persons in California. Proposition 65 was substantially amended in August 2016. Among other things, the amendments repealed and revised all of Article 6, which mandates the "Clear and Reasonable Warnings" requirements.
The Article 6 amendments alter the methods of transmission and form and content of warnings for compliance with Proposition 65. The following contains a brief overview of the current warning requirements in effect since 2008 for certain labels which, as noted above, will change on August 30, 2018. The current warning requirements for product labels require the following so-called "Safe Harbor" language for consumer product warnings. Safe Harbor levels are those developed by the Office of Environmental Health Hazard Assessment (OEHHA) for many of the listed chemicals that trigger the actual warning requirement.
A. Carcinogens — "WARNING: This product contains a chemical known to the State of California to cause cancer."
B. Reproductive Toxicants — "WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm."
The amended regulations contain several new requirements for the Safe Harbor warnings for consumer products, in addition to warnings for other exposures. For consumer products, where a label on the product packaging is used as the method of compliance there are two options: a label or an "on-product" warning. A warning provided by a label must now include three new elements: (1) a yellow and black warning triangle; (2) the name of at least one chemical to which exposure may occur (cancer or reproductive harm); and, (3) a link to the state's Proposition 65 website (www.P65Warnings.ca.gov).
The Safe Harbor warning language required after August 30, 2018 is as follows:
A. Carcinogens — "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. For more information go to www.P65Warnings.ca.gov."
B. 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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov."
The "on-product" option mentioned above is essentially a form of a label, but is placed on the product itself, on the product packaging, or both. This alternative Safe Harbor method was developed in response to concerns that some consumer product packaging is so small that there is not enough room for the full label warning. The onproduct option allows a consumer product to carry a short-form version of the Safe Harbor warning. If the product label includes consumer information in a language other than English, the warning must also be provided in that language, in addition to English.
There are numerous other requirements in the Proposition 65 amendments concerning specific categories of goods and exposures, such as canned and bottled food and water, recreational vehicles, furniture, wood products, prescription drugs, alcoholic beverages, hotels, amusement parks and enclosed parking facilities. Similarly, information about products that appear on the Internet or catalogues is also subject to specific requirements set forth in the new regulations.