Chemical Compliance: Deadline Looms for Prop 65

Mandate for new warning labels take effect this summer in California

By Lynn L. Bergeson

In just a few short months, on August 30, 2018, the California Office of Environmental Health Hazard Assessment (OEHHA) revisions to its Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations will come into force. By then, companies must be compliant with the revised regulations for consumer product, occupational and environmental exposures.

The consequences of non-compliance are high.


Key changes include adding a new warning symbol, consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. The symbol can be printed in black and white if the sign, label or shelf tag for the product doesn’t use yellow ink, even if other colors are used. Companies must change the warning language to state that the product “can expose you” to the Prop 65 chemical; reference OEHHA’s new website, www.P65Warnings.ca.gov/product; and identify the name of one or more of the listed chemicals requiring the warning. When used to identify more than one endpoint (cancer and reproductive toxicity), the warning must include the name of one or more chemicals for each endpoint, unless the chemical is listed as known to cause both and is identified as such in the warning.

The rules provide a short-form, on-product label as an acceptable alternative to the revised requirements for consumer product exposure warnings, previously referred to as “on-product” warning. This option requires the hazard symbol, the word “WARNING” in capital letters and bold print, and a reference to OEHHA’s website, but importantly doesn’t require a company to name a listed chemical within the text of the warning.

The short-form warning must contain one of the following: for consumer products that cause exposure to listed carcinogen(s), the words “Cancer —www.P65Warnings.ca.gov”; for consumer products that cause exposure to listed reproductive toxicant(s), the words “Reproductive Harm —www.P65Warnings.ca.gov”; or for consumer products that cause exposure to both a listed carcinogen and a reproductive toxicant, the words “Cancer and Reproductive Toxicant —www.P65Warnings.ca.gov.”

The revised regulations clarify that the warning must be provided to the purchaser “prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning.” For Internet purchases, the warning must be provided prior to completing the purchase; this entails a warning separate from the one provided on the consumer product itself.

The amended regulations set forth new requirements if a business intends to comply with warning obligations by providing written notice to its retail seller. Retail sellers are generally responsible for placement and maintenance of warning materials, including warnings for products sold over the Internet, only when the manufacturer, producer, packager, importer, supplier or distributor of a product provides written notice that:

•    states the product may result in an exposure to one or more listed chemicals;
•    includes the exact name or description of the product or specific identifying information for the product such as a Universal Product Code or other identifying designation;
•    contains all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet (i.e., no time-lag between receipt of the notice that a warning is required, and receipt of the warning materials themselves); and
•    has been sent to the authorized agent for the retail seller, and the manufacturer, producer, packager, importer, supplier or distributor has obtained confirmation electronically or in writing of receipt of the notice.

New regulations exist providing tailored methods for transmitting warnings and warning language for several products, chemicals and area exposures: food (including dietary supplements); alcoholic beverages; food and non-alcoholic beverages in restaurants; prescription drugs; dental care and emergency medical care; raw wood; furniture; diesel engines; passenger or off-road vehicles; recreational vessels; parking garages; amusement parks; petroleum products; service stations and vehicle-repair facilities; and designated smoking areas. Any company that has warning obligations related to any of these scenarios must review and ensure compliance with the specific requirements.

Time is running out quickly. Companies are urged to review products, particularly consumer products, for which they provide warnings to determine how they will meet the new regulatory requirements. The review takes time. The consequences of non-compliance are high, and you can bet private litigants will be watching closely.


bergeson-color.jpgLYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at lbergeson@putman.net

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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