Amendments to California's Proposition 65 may force companies to rewrite warnings

 
The language companies have been using to comply with California’s Proposition 65 may no longer be adequate as of Aug. 30, 2018. That’s the deadline for compliance with updated regulations affecting all companies whose products end up in the Golden State.

Ever since 1986, if a product contains any of thousands of chemicals listed by California as potentially harmful, companies must warn the end-user of possible exposure by using specific language which may now need to be modified to comply with amendments set to go into effect at the end of August.

WHAT IS PROPOSITION 65?

Proposition 65 is the name used for the California Safe Drinking Water and Toxic Enforcement Act of 1986, which prohibits companies doing business within California from knowingly discharging listed chemicals into sources of drinking water. Prop 65 is mostly known for the warnings it requires to be placed on any products containing those listed chemicals which might ultimately be sold to a California consumer.

WHY IS PROP 65 THE FOCUS OF SO MUCH ATTENTION RIGHT NOW?

Certain amendments to Prop 65 become effective soon on August 30, 2018, so there are many companies which are just now trying to come into compliance with the new amendments.

WHAT REQUIREMENTS DOES PROPOSITION 65 PLACE ON COMPANIES DOING BUSINESS IN CALIFORNIA?

Businesses are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a listed chemical, unless the business can show the anticipated exposure level will not pose a significant risk of cancer, or it is significantly below levels observed to cause birth defects or other reproductive harm.

This warning can be given in several ways, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. The requirement to provide warnings takes effect one year after a chemical is added to the list.

ARE ANY BUSINESSES EXEMPT FROM PROPOSITION 65?

Businesses with fewer than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources. Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or are significantly below levels observed to cause birth defects or other reproductive harm.

HOW CAN BUSINESSES DETERMINE IF A WARNING IS REQUIRED?

Using its knowledge of its business operations and the chemicals it uses, a business can review the Proposition 65 list to determine whether its operations or products are likely to expose people in California to any listed chemicals.  Depending on the level of exposure, the business may be required to provide a warning for those exposures.  A business determining it is causing exposures to a listed chemical may be able to use California’s safe harbor numbers to determine if it needs to provide a warning.

WHAT ARE SAFE HARBOR NUMBERS?

To guide businesses in determining whether a warning is necessary or whether discharges of a chemical into drinking water sources are prohibited, California has developed safe harbor levels for many Prop 65 chemicals. A safe harbor level identifies a level of exposure to a listed chemical that does not require a Prop 65 warning.  A business does not need to provide a warning if exposure to a chemical occurs at or below these levels. These safe harbor levels consist of No Significant Risk Levels for chemicals listed as causing cancer and Maximum Allowable Dose Levels for chemicals listed as causing birth defects or other reproductive harm.

WHAT ARE THE MOST SIGNIFICANT CHANGES TO THE PROPOSITION 65 WARNINGS FOR CONSUMER PRODUCTS?

Most Prop 65 warnings simply state a chemical is present that causes cancer or reproductive harm, but they do not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it.

The new amendments change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Prop 65 chemical, rather than saying the product “contains” the chemical.

The warnings will also include:

• The name of at least one listed chemical that prompted the warning
• The Internet address for California’s new Prop 65 warnings website www.P65Warnings.ca.gov
• A triangular yellow warning symbol on most warnings

 
WHAT ARE THE WARNING RESPONSIBILITIES FOR MANUFACTURERS AND RETAILERS?

The new system clarifies that manufacturers have the primary responsibility for providing Prop 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical requiring warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Prop 65 chemical. Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

WHERE CAN I FIND MORE INFORMATION ON PROPOSITION 65 WARNING REQUIREMENTS?

Prop 65 and its regulations are posted at https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations.

For a side-by-side comparison of the current and new warning regulations, see https://oehha.ca.gov/media/downloads/crnr/side-sidearticle6.pdf.

You can also contact the Proposition 65 Implementation Program office: (916) 445-6900 or email P65.Questions@oehha.ca.gov.

Finally, you can reach out to legal counsel knowledgeable about Prop 65 and its requirements, including John Heer of McDonald Hopkins LLC at 216-348-5717 and jheer@mcdonaldhopkins.com.