Prop 65 – Version 2.0: New Rules for Prop 65 Warnings Shake Things Up

California’s old Proposition 65 warnings, which have been in place since 1986 are about to get a facelift – under newly adopted regulations by the Office of Environmental Health Hazard Assessment (OEHHA), what was once “clear and reasonable” may not be anymore. Also, internet sales may face new requirements to ensure consumers are warned prior to purchasing a product. Companies will need to update the warnings to keep pace with a hungry plaintiff’s bar.

The main changes focus on (1) the wording, (2) the application of the warning for internet sales, and (3) newly regulated products and classes of products. While the effective date of the new requirements is August 30, 2018, companies should begin planning now to ensure compliance.

Wording/Language

Proposition 65 has always required “clear and reasonable” warnings, and the regulations have always offered sample language which presumptively meets the “clear and reasonable” standard. Last year, the Office of Administrative Law approved new sample language which becomes effective August 30, 2018. The main changes to the warning label for most consumer products (excluding food and beverages, which have specific prescribed warnings) are:

• The name of the listed chemical(s) that prompted the warning and the corresponding risk of harm (cancer, birth defects and/or reproductive harm);
• A triangular yellow warning symbol with an exclamation point on nonfood products; and
• Direction to the internet address for OEHHA’s new Proposition 65 warnings website - www.P65Warnings.ca.gov.

Internet Sales

The new regulations for internet sales are a significant departure from the current regulations, designed to increase disclosure and transparency and destined to shake up the regulated marketplace. Warnings in general must be provided to consumers prior to or during purchase, as compared with the current regulation, which requires warning prior to exposure or use of the product. For in-store purchases, on-product warnings or posted signs would be adequate.  However, warnings for internet sales are getting more stringent.  Internet retailers will be required to provide separate warnings for products sold online, even if the products themselves contain a compliant Proposition 65 warning.  The product-specific warnings may be provided via electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the product.

Newly Regulated Products

The new regulations provide specific, tailored “safe harbor” warning provisions for new products, classes of products, exposure scenarios and places, including:

• Alcoholic beverages
• Food and non-alcoholic beverages
• Restaurants
• Prescription drugs
• Dental care and emergency medical care
• Raw wood and wood dust
• Furniture products
• Diesel engines
• Passenger vehicles or off-road vehicles
• Recreational vessels
• Enclosed parking facilities
• Amusement parks
• Petroleum products
• Service stations and vehicle repair facilities
• Designated smoking areas

Application/Impact

A warning for any consumer product manufactured prior to August 30, 2018 will be deemed “clear and reasonable” if it complies with the existing regulations. Under the new rules, however, warnings for consumer products manufactured on or after August 30, 2018 will need to conform to the new regulations.  Until then, warnings may use either the current warning language under existing 2008 regulations or the new language; businesses can choose to operate under the new regulations immediately.

The rules provide an exception for court approved consent judgments. Warnings containing the older Proposition 65 language will always be deemed “clear and reasonable” and thus compliant, so long as they were approved by a judge in a consent judgment before August 30, 2018.

Anytime regulations change, the regulated marketplace must adapt. New products and newly manufactured items will need to bear the new warnings.  But a lot of uncertainty remains:

• What about products comprised of multiple chemicals?
• How do you determine the manufacture date when production includes many steps?
• What is the effect of prior settlements that were not confirmed by a court?

What It Means

Suddenly, the adequacy of, and not just the need for, a warning will be challenged. We anticipate new litigation regarding prior warnings. Although businesses may use alternative warnings so long as the warnings are deemed “clear and reasonable,” the safest thing for a business to do is adopt the language in the regulations.  Given the considerable changes to Proposition 65, businesses should revisit their compliance programs, inventory stock and ingredient/component lists.  What meets the standard today may not meet the standard next year.