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New Proposition 65 Safe Harbor Warnings Effective August 30, 2018

by Renée D. Wasserman and Suhani Kamdar

RJO Update:
Retail Industry Trade Regulation and Environmental Law
August 2018

New Proposition 65 Safe Harbor Warnings Effective August 30, 2018

By  Renee D. Wasserman and Suhani Kamdar

The amended Proposition 65 Clear and Reasonable Warnings regulation, 27 Cal. Code Regs. § 25600 et seq., becomes effective and enforceable on August 30, 2018. Businesses that expose California consumers to one or more of the 900-plus chemicals on the Proposition 65 list, which are known to the State of California to cause cancer, birth defects or other reproductive harm, must comply with the regulations. While the article below provides some exemplar warning language from the new regulations, compliance with the requirements of the new regulations is complex and advice of counsel is recommended in connection with implementing the new warnings.

Section 25600.2 sets forth a division of responsibility for warnings between manufacturers, producers, packagers, importers, suppliers and distributors (the “suppliers”) on the one hand, and retailers on the other.  Retailers bear responsibility for providing warnings only under five specified circumstances, including selling products under a private label, but provided that the consumer receives a warning prior to exposure, suppliers and retailers may enter into written contractual agreements to allocate legal responsibility among themselves, which supersedes the requirements of the regulation.

While this update focuses on the content of the new “safe harbor” warnings set forth at 27 Cal. Code Regs. §§ 25600-25608.27, to determine whether your business bears responsibility for providing warnings, and how to implement those warnings, please contact counsel for guidance.

Difference Between Old and New Safe Harbor Warning for Consumer Product Exposures

         ▪ OLD: “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”

         ▪ NEW: “ ⚠️ 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.P65Warnings.ca.gov.”

Unless otherwise provided in § 25607.1 et seq., which set forth specialized warnings for specific types of exposure, a safe harbor warning on product labeling or packaging, at the point of display and for internet/catalog sales must include:

(1) This triangle symbol/pictograph: ⚠️

If yellow is not used in the signage or labeling for the product, the symbol may be printed in black and white.  Its size must be at least equivalent to the height of the following word.

(2) Followed by the word “WARNING” in capital letters and bold print.

(3) A statement naming at least one chemical of concern and the accurate endpoint (cancer, reproductive toxicity or both).

Note: The examples above and below are for chemical exposure resulting in both cancer and reproductive toxicity endpoints and are not appropriate for single endpoint exposure.

Example of Long-form Warning:  ⚠️ 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.P65Warnings.ca.gov.

Alternative Short-Form Warning

On-product warnings—but not warnings on retail shelf tags/signs—may be shortened due to space concerns, but they should be printed in the same size used for other consumer information on the product, and no smaller than 6-point type.

Example of Short-Form Warning:

⚠️WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.

Specified Warnings

Sections 25607.1 et. seq. govern very specific safe harbor warnings that must be provided for these fourteen types of exposure:

  • Food and Dietary Supplement
  • Prescription Drug, Emergency Medical or Dental Care
  • Alcoholic Beverages
  • Food & Non-Alcoholic Beverages for Restaurants
  • Raw Wood Products
  • Furniture Products
  • Diesel Engines
  • Passenger or Off-Road Vehicles
  • Recreational Vessels
  • Enclosed Parking Facilities
  • Amusement Parks
  • Petroleum Products
  • Designated Smoking Areas
  • Service Station and Vehicle Repair Facilities

An example of a safe harbor warning for one of these specific categories is set forth below, but each category has a different warning.

Food Exposure Warning (Including Dietary Supplements)

No symbol/pictograph is required, but the warning must be set off from surrounding information and enclosed in a box on the product label.

Example of On-Product Food Warning:

Note:  If a label, sign or shelf tag used to provide a warning includes consumer information in a foreign language, the warning must also be provided in that language in addition to English.

Alcoholic Beverage Exposure Warning

No symbol is required, but the warning must be provided in English and in any other language used for labeling or advertising the product on the premises.

Example of Alcohol Beverage Warning (On and Off-Premises Establishments):

WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects.  For more information go to www.P65Warnings.ca.gov/alcohol.

Safe Harbor Warnings for Environmental and Occupational Exposures

Unless otherwise provided in § 25607.1 et seq., a safe harbor warning must state:

⚠️WARNING: Entering this area can expose you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm, including [name of one or more chemicals known to cause cancer and name of one or more chemicals known to cause birth defects or other reproductive harm], from [name of one or more sources of exposure]. For more information go to www.P65Warnings.ca.gov.

In order to fall within the safe harbor, businesses subject to Prop 65 must comply with these new regulations. For help in determining whether your business must implement warnings, the content of those warnings and the methods of transmission, please contact legal counsel to ensure accurate and timely compliance.

How We Can Help Your Company

Rogers Joseph O’Donnell specializes in working with its corporate clients on compliance with regulatory and environmental laws that impact their business.  For compliance advice or defense of claims, attorneys Renee D. Wasserman (rwasserman@rjo.com), J. Robert Maxwell (jmaxwell@rjo.com), Alecia Cotton (acotton@rjo.com) and Suhani Kamdar (skamdar@rjo.com) are available to assist.  For biographies and other information, please visit http://www.rjo.com.

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