New Prop. 65 Labeling Requirements – Will They Be Effective?
California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has adopted new Prop. 65 regulations that go into effect in August 2018, that change the requirements for the content and format of warnings to gain safe-harbor protection. The following highlights the revisions to the warning requirements that apply to consumer products.
- Safe-Harbor Warning Language – requires separate warnings based on the types of listed chemicals, the number of listed chemicals, and the method of transmission. The new regulations now require that the warning include the word “WARNING” in all capital letters and bold print. The new regulations further specifies different warnings for products that contain only carcinogens, only reproductive toxicants, both listed carcinogens and listed reproductive toxicants, or a listed chemical that is both a carcinogen and reproductive toxicant.
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 birth defects or other reproductive harm. For more information go to www. P65 Warning.ca.gov
The new regulations provide alternative safe-harbor language for warnings that are placed directly on a product or a product’s immediate packaging.
Unless they label their products, manufacturers, producers, and packagers must document that they have notified retailers of the need to provide warnings and provide all necessary warning materials. Retailers are only responsible for providing warnings if they have been notified but have failed to provide the warnings, if they are selling “house brands,” or in other limited circumstances. The new regulations also address Internet warnings.
Businesses have 12 months to comply with warning requirements and non-compliance with these Prop 65 requirements can be costly for companies. Millions of dollars have been paid out in legal settlements. Although the law may have succeeded in removing some chemicals in certain consumer products, in most cases I have not seen evidence of real benefit to the individual consumer. Will the new regulations allow the consumer to make an informed decision regarding the use of product? I urge companies to review the new regulations carefully, seek guidance from professionals where warranted, and take steps to bring their operations and product lines into compliance by the 2018 deadline. We will issue a more detailed description of the new Prop 65 warnings in our next newsletter. Let us know if you’d like to be included in the newsletter distribution by sending your contact information to email@example.com.