On August 30, 2016, OEHHA’s long-awaited amendments to the Proposition 65 clear and reasonable warning regulations became final. The amendments bring two major changes: (1) an allocation of responsibility for providing warnings between retailers and suppliers; and (2) revisions to the safe harbor warning requirements, including warning content and methods of transmission.
Allocation of Responsibility
Under the existing Proposition 65 regulations, any party in the supply chain could be held liable for failure to provide a warning. The revised regulations allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible in specified circumstances.
Suppliers can meet their warning obligation “either by affixing a label to the product bearing a warning…, or by providing a written notice directly to the authorized agent for a retail seller.” 27 Cal. Code Regs. § 25600.2.
The only situations where a retailer is primarily responsible for providing a warning (i.e., may be liable in an enforcement action) are when:
- The retailer sells the product under its private label, brand, or trademark.
- The retailer has knowingly and intentionally introduced a listed chemical into the product, or caused a listed chemical to be created in the product.
- The retailer has covered, obscured or altered a warning label.
- The retailer has received warning information and materials from the supplier and does not post them—note that consent for the warnings from the retailer is not required; the supplier need only send the information to the retailer’s authorized agent.
- The retailer has actual knowledge of the potential product exposure requiring the warning, and the suppliers are exempt
A retailer can modify this allocation by contract, requiring its suppliers and other vendors to provide a warning, as long as a required warning is ultimately provided.
If a warning is not provided and the retailer meets one of these conditions, it will find itself in the same situation as before the amendments: it can be sued by a private or public enforcer, and it will need to consider seeking defense and indemnity from its supplier.
The Five Business Day Exemption for Retailers
The good news for retailers is that they will not be liable for an enforcement action in which a product was supplied by a domestic, non-exempt entity that did not provide warning materials to the retailer, and none of the other four conditions apply, provided that they stop selling the product at issue or provide a warning for it within five business days of receipt of the 60-day Notice initiating the enforcement action.
Safe Harbor Warning Methods for Consumer Products
The regulation requires that warnings be “prominently displayed” on a label, labeling or sign. The warning must be displayed such that, when compared with other words, statements, or designs on the label, the warning is “likely to be read and understood by an ordinary individual under customary conditions of purchase or use.”
Environmental warnings must be displayed so that they should be seen and understood by an “ordinary individual in the course of normal daily activity.”
In-Store Signage and Catch-All Warning
To meet the safe harbor method for brick-and-mortar stores, warnings must be provided on product labels or at the point of display (product-specific posted or shelf signs). Point of sale signs (other than the BPA signs) are not approved safe harbor warning methods.
A retailer may also provide a warning by any electronic device or process that provides the warning prior to or during the purchaser without requiring the consumer to seek out the warning. Examples include electronic shopping carts, QR Codes, smart phone applications, barcode scanners, and self-checkout registers.
Online and Catalog Warnings
For online transactions, retailers must include either the warning or a clearly-marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. For catalogs, warnings must be clearly associated with corresponding products.
According to OEHHA guidance, online and catalog warnings must be provided even if the product is already labeled with a warning. Warnings contained within general website content will not meet the safe harbor method.
Safe Harbor Warning Messages for Consumer Products
To meet the safe harbor, the amendments require the inclusion of a warning symbol and specific identification of at least one chemical in the product that is associated with the warning’s toxicological endpoint (cancer or reproductive harm). Warnings must be provided in the same language or languages as any other label, labeling or sign accompanying a product.
Standard warning language
Carcinogen or Reproductive Toxicant Warning
WARNING This product can expose you to [name of one or more chemicals], a chemical [or chemicals] known to the State of California to cause [cancer] [birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov/product.
Warnings for Both Cancer and Reproductive Toxicity
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, and [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.
Short form warnings
The regulations permit the use of short form warnings on products that do not require chemical identification (OEHHA’s original purpose in permitting short form warnings was for products for which the standard warnings is not practical due to size or amount of packaging):
If a product is labeled with a short form warning, a retailer may provide the short form warning on the website for online transactions.
Warning language for specific products
The amendments contain several product-specific safe harbors that generally tweak the warning language or add additional requirements, including:
- Food and dietary supplements
- Alcoholic beverages
- Food and non-alcoholic beverages in restaurants
- Raw wood
- Prescription drugs and emergency medical or dental care
- Diesel engine exhaust
- Vehicle and RV exhaust
- Parking garages
- Amusement parks
- Petroleum products in industrial settings
- Service stations and automotive repair
- Smoking areas.
The amendments are not mandatory until August 30, 2018. Products manufactured prior to August 30, 2018 may either comply with the regulations as previously written or the new regulations. Warnings imposed by court-ordered settlements or final judgments are grandfathered in and will still be deemed compliant with Proposition 65.