California Finalizes New Proposition 65 Warning Rules

SEMA News—December 2016

FROM THE HILL

By Ashley Ailsworth

California Finalizes New Proposition 65 Warning Rules

State Seeks to Expand Chemical-Exposure Labeling Requirements for Consumer Products

If you sell products into California, chances are you have already heard about the state law known as Proposition 65 (Prop. 65), which gives consumers and their attorneys the ability to sue businesses that do not include warning labels on products containing certain chemicals. Prop. 65 was approved by voters in 1986 to enable Californians to be aware of the presence of chemicals known to cause cancer, birth defects or other reproductive harm. To achieve this goal, Prop. 65 allows consumers to sue companies that sell products in California that expose consumers to certain chemicals without carrying an acceptable warning.

 

Examples of Acceptable Warning Labels Under the New Regulations

  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, visit www.P65Warnings.ca.gov.
  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, visit www.P65Warnings.ca.gov.
 

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 or birth defects or other reproductive harm. For more information, visit www.P65Warnings.ca.gov.

Prop. 65 has enabled enterprising plaintiffs and attorneys in the state to bring lawsuits against businesses that do not include warning labels on all their products. Often referred to as “bounty hunter” suits, these cases routinely lead to businesses paying monetary settlements to avoid long court battles and hefty legal fees. Fortunately, if a business labels its products with a warning that satisfies the state’s regulations, it is eligible for a safe harbor from such lawsuits.

The California Office of Environmental Health and Hazard Assessment recently finalized new regulations governing the acceptable content of warning labels that can be used to comply with Prop. 65 and avoid frivolous lawsuits. The new regulations will become effective on August 30, 2018, allowing businesses a two-year period to update their warnings to meet the new requirements. Businesses can transition to the new warnings any time during the two-year transition period. Products manufactured prior to August 30, 2018, can comply with the old regulations and carry the old warning language, even if sold after that date, but all products manufactured after August 30, 2018, must carry the new warning language.

While labeling may seem burdensome, it can help a business avoid legal challenges down the road. Here are some key aspects of the new regulations on Prop. 65 warning labels.

  • Warnings must be given at or before the point of purchase (required to be shown on website or catalog if sold via those channels). 
  • Warnings must contain a graphic depiction of a yellow triangle containing an exclamation point. (If the warning is printed on packaging that does not use the color yellow, the graphic can be in black and white.)
  • Warnings must include the website www.P65Warnings.ca.gov.
  • Warnings must specify at least one chemical for which a warning is being provided if the label is included anywhere other than on the product or its exterior packaging.
  • Warnings may be in a truncated label format that does not reference the specific chemical(s) at issue if it is included on the product or its exterior packaging. (Use of the truncated label does not relieve a business of the requirement to include a full warning on websites and catalogs from which the product can be ordered.)

SEMA continues to monitor changes to the Prop. 65 regulations as well as other chemical labeling proposals at the state and national levels. For more information about Prop. 65 or chemical labeling more generally, please contact the SEMA government affairs office.

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