LEGISLATIVE AND TECHNICAL AFFAIRS
By Daniel Ingber
Complying With California Proposition 65’s New Regulations
Proposition 65 is a California law that gives consumers and their attorneys the ability to sue businesses that do not include warning labels on products containing chemicals associated with cancer and birth defects. If you are already familiar with the labeling requirements of Prop. 65, you know that it can be difficult to comply with the law and that compliance can be costly. It’s about to become worse. Products manufactured after August 30, 2018, will be subjected to updated regulations with more onerous labeling requirements. This article outlines what you need to know about the new requirements.
Prop. 65 became law in 1986, with the stated purpose to “provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm.” Because the law allows for a private cause of action, it has spawned an industry of aggressive plaintiff-side law firms that misuse the law to net large settlements. The automotive specialty parts industry has been a frequent target of Prop. 65 lawsuits.
The law requires warning labels on products containing chemicals listed by the California Office of Environmental Health and Hazard Assessment (OEHHA) as known to cause cancer, birth defects or reproductive harm. There are more than 800 chemicals currently on the list, which can be viewed at www.oehha.ca.gov/proposition-65/proposition-65-list.
Prop. 65 doesn’t stop anyone from selling products, no matter what chemicals they contain. It is simply a law that requires consumer-warning labels under certain circumstances. The warning requirement applies to any business with 10 or more employees in the chain of distribution, including manufacturers, distributors and retailers and out-of-state companies selling products in California. Under the law, fines can run up to $2,500 per day per violation.
The Prop. 65 regulations are very specific. If it’s determined that a product meets the criteria for labeling, a warning currently must contain the following language:
WARNING: This product contains a chemical known to the State of California to cause [cancer] [and/or birth defects or other reproductive harm].
However, products manufactured after August 30, 2018, will be subject to new, more detailed labeling requirements. Under the new rules, a warning must:
- Contain a graphic depiction of a yellow triangle containing an exclamation point.
- Specify at least one chemical for which the warning is being provided, if the label is not included on the product or packaging.
- Include the website www.p65warnings.ca.gov.
The new requirement to list at least one chemical for which the warning is being provided makes it more difficult to comply with the law because companies can no longer put a generic label on all products. However, the new regulations do allow one very useful out from listing specific chemicals on product-warning labels: A short form or “truncated” on-product label can be used when the label is placed directly on the product or product packaging.
If a truncated warning is placed directly on the product, a truncated warning can also be used on the company website or catalog. Many companies find that the placement of truncated warnings directly on the product is the most efficient means of complying with Prop. 65, as there is no need to list a specific chemical.
All internet purchases, whether using the truncated warning or full warning, must include the warning on the product display page or a clearly marked hyperlink using the word “WARNING” on the product display page, or otherwise prominently displaying the warning to the purchaser prior to completing the purchase.
For catalog purchases, the warning must be provided in the catalog in a manner that clearly associates it with the item being purchased. In the automotive specialty parts industry, it is often impractical to list a warning next to every line item in a catalog. Many companies will place a symbol next to items requiring a warning and print the full warning on the bottom of the catalog page. While the OEHHA has not provided more specific guidance on catalog warnings of this sort, that may be sufficient to comply with the requirement that the warning is clearly associated with the item being purchased.
The new requirements apply to products manufactured after August 30, 2018, so there is no need to recall products or change the labels on products that have already been manufactured.
The labeling requirements of Prop. 65 are very detailed, and the above is simply an overview of the new requirements. We urge you to consult the resources available at www.sema.org/prop65, which contains additional information and links to statutes, regulations and information provided by OEHHA and the California attorney general.
No part of this article constitutes legal advice, and you should consult with legal counsel prior to using this guidance. If you have questions or need further information, contact Daniel Ingber, SEMA managing director of government and legal affairs at email@example.com or 202-792-4446.