California Proposition 65 Amendments – An Unsavory Impact on Food and Beverage Industries?
Now is the time to update your Proposition 65 warnings in California. On August 30, 2018, new regulations go into effect changing the warnings required for the food and beverage industries. Amendments to California's Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, require businesses to provide “clear and reasonable” warnings about the presence of certain chemicals, including chemicals in food, beverages, and other consumer products manufactured, sold or distributed to consumers. The new regulations provide new suggested language as a “safe harbor” which meets the “clear and reasonable” standard.
While Prop 65 has been around for 30 years, recent actions focus on food and beverage products, including: acrylamide in coffee, baked goods, French fries and chips; furfuryl alcohol, which can be found in a variety of foods including baked goods, coffee and pasteurized milk; and, of course, alcohol beverages.
Here we highlight the updated warnings applicable to establishments that sell food products, including shops and restaurants. While some establishments and distributors may already provide warnings, the 2018 “safe harbor” language has new requirements. Key changes include a requirement to identify the chemical and include the address of the State’s Proposition 65 website.
| FOOD PRODUCTS | ||
| Effective until 8/30/18 | Effective Beginning 8/30/16, Mandatory Beginning 8/30/18* *Exception – court approved settlements | |
| Old Warning This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm. | New Warning
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Importantly, the new regulations specifically include products sold on the internet. It is imperative that warnings be provided pre-purchase – before the final confirmation of the shipment. This can be accomplished by including the warning on the product page, product description, or at warnings appearing with California addresses before the consumer finalizes the purchase.
California restaurants with 10 or more employees must post a warning at the public entrance to the restaurant and at each point of display. Restaurants may also choose to provide the Prop 65 warnings on their menus.
| RESTAURANTS | ||
| Old Warnings – None Required | Effective Beginning 8/30/16, Mandatory Beginning 8/30/18 | |
| Method of Transmission | Specific size and placement requirements include for each public entrance to the restaurant, point of sale, or point of display Restaurants in San Francisco must post Proposition 65 warnings in English, Chinese and Spanish. | |
| Food | New Warning
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| BPA in Containers | New Warning WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you consume foods or beverages packaged in these containers. For more information go to: www.P65Warnings.ca.gov/BPA | |
Alcohol sales still require warnings. Stores and restaurants that sell alcoholic beverages should update their alcohol-specific warning.
| ALCOHOLIC BEVERAGES | ||
| Effective until 8/30/18 | Effective Beginning 8/30/16, Mandatory Beginning 8/30/18* *Exception – court approved settlements | |
| Old Warning Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. | New Warning
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This is the time to check in on Prop 65 compliance programs. For more information on how to comply with these updates, please contact Kerry Shea, Larry Burke or Tahiya Sultan. Kerry Shea focuses her practice on environmental permitting, counseling and litigation, regularly assisting clients with Prop 65 compliance, notices and enforcement actions. Kerry can be reach directly at kerryshea@dwt.com or 415.276.6598.
Larry Burke is an environmental, health and safety (EH&S) attorney, assisting clients with product issues, air permitting, EH&S auditing, contamination issues, waste management, and related litigation. Larry can be reached directly at larryburke@dwt.com or 503.778.5239.
Tahiya Sultan concentrates her practice on energy and environmental law, advising clients on a broad range of transactional and regulatory matters. Tahiya can be reached directly at tahiyasultan@dwt.com or 415.276.6539.