New regulations for California Proposition 65 (Prop 65) warning labels went into effect on August 30, 2018 and apply to products manufactured after that date.
The changes are likely to directly impact manufacturers, distributors, and retailers, including online vendors. Manufacturers and distributors will have the primary obligation to display updated warning label on products. Retailers will gain new protections but will continue to have specific obligations and internet retailers have new requirements to display warnings on webpages.
Companies should expect the plaintiff lawyers that benefit financially by alleging that companies are in violation of Prop 65 to take advantage of these changes by bringing legal action against those not in strict compliance.
The list of more than 800 chemicals covered by Prop 65 includes naturally occurring and synthetic chemicals listed by the state as "carcinogens" or "reproductive toxicants." Chemicals included in this growing list include chemical constituents that naturally occur in certain botanicals used in teas and dietary supplements.
Safe Harbor Changes
California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has provided generic warning language (known as “safe harbor” warnings) that it has determined to meet the requirements of Prop 65. Because plaintiff lawyers continue to profit from the expanding law, many companies rely on these safe harbor warnings to ensure Proposition 65 compliance and mitigate legal liabilities.
Beginning August 30, 2018 warning labels will need to include three main elements in six-point or larger font:
- The name of at least one chemical that is the subject of warning
- A link to a website containing Proposition 65 information, including health effects and ways to limit exposure
- A yellow and black triangle warning symbol
A new safe harbor warning may look like this:
WARNING: This product can expose you to chemicals including [name of at least one chemical], which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information visit www.P65Warnings.ca.gov
A shorter option is also provided for on-product warnings:
WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov.
Safe harbor warnings remain one of the most effective methods of avoiding costly litigation. However, companies can also comply by displaying any “clear and reasonable” warning, but defending these alternative approaches in court can be tricky because these terms aren’t clearly defined in the law.
Although the law includes protections for retailers against plaintiff lawyers, retailers remain a frequent target of Prop 65 litigation. The new regulations provide more protection for retailers, limiting their responsibility for providing a warning to house brands, when they are notified by the manufacturer, or in other specific circumstances. The new regulations require manufacturers and packagers to document that they have notified retailers of the need to provide warnings and provided all necessary warning materials.
For retail websites, providing the warning as a small link at the bottom of a webpage will no longer ensure compliance. Beginning Aug. 30, companies must include the safe-harbor warnings on the product display page, in a hyperlink using the word “WARNING” on the product display page, or by prominently displaying the warning prior to the purchase. Warnings that require the customer to search in the general content are not considered prominently displayed.