California’s Office of Administrative Law has approved the Office of Environmental Health Hazard Assessment’s revisions to Proposition 65 safe harbor warnings requirements relating to alcohol sales and delivery. The amended regulations, which go into effect on April 1, 2021, aim to codify the terms of a settlement agreement between the California Attorney General and online sellers of alcoholic beverages and will impact all retailers who sell and deliver alcohol to California consumers.
The safe harbor warnings are not mandatory, and retailers may either employ other means of providing a warning or use different textual language. However, in doing so, retailers would risk greater scrutiny from plaintiffs’ attorneys and lay fertile ground for allegations of Proposition 65 violations. Therefore, to best defend against claims alleging failure to provide consumers a “clear and reasonable” Proposition 65 warning, retailers who sell and deliver alcohol should comply with the following safe harbor provisions.
The existing safe harbor warnings provisions applicable to alcohol sales at physical premises will not change. In order to fall under the Proposition 65 safe harbor, retailers who sell alcohol at a brick-and-mortar location must continue to provide this alcohol-specific safe harbor warning on a legible and conspicuous notice or sign placed at each point of sale or display:
27 CCR §§25607.3(a)(1)(B), 25607.4.
To meet safe harbor requirements prescribed in the amended regulations, all retailers who deliver alcohol to locations away from the point of sale must provide the alcohol-specific warning to the purchaser or delivery recipient prior to or during the purchase. 27 CCR §25607.3(a)(2). This requirement applies to alcohol sold at a brick-and-mortar location and then delivered to the customer’s home.
Under the revised regulations, retailers who sell alcoholic beverages through the internet or via catalogs must first post a compliant warning online or in the catalogs, as applicable. 27 CCR §25607.3(a)(3)(A). For internet purchases, a warning satisfies safe harbor requirements if it is provided (i) by including, on the product display page, either the warning itself or a clearly marked hyperlink that includes the word “WARNING,” or (ii) by otherwise prominently displaying the warning to the purchaser before he or she completes the purchase. 27 CCR §25602(b).
In addition, to remain under the safe harbor, retailers who deliver alcoholic beverages sold online or via catalogs must provide a readable and conspicuous warning prior to or contemporaneously with the alcohol delivery. As of April 1, 2021, the warning may be provided via email or text message as part of the electronically delivered receipt or purchase confirmation. 27 CFR §25607.3(a)(3). Although retailers may continue to provide the warning on shipping containers or delivery packages instead, the new option may prove more logistically feasible.
If a language other than English is used to label or advertise any alcohol product offered for sale online, including on mobile device applications, or in catalogs, the safe harbor warning must be stated on the shipping container, delivery package or electronic receipt/confirmation in the foreign language(s).
Rogers Joseph O’Donnell specializes in working with its corporate clients on compliance with regulatory laws such as Proposition 65 that impact their business. For compliance advice or defense of claims, attorneys Renee D. Wasserman, Alexis J. Morris, Alecia Cotton and Suhani Kamdar are available to assist.