The California Office of Environmental Health Hazard Assessment (OEHHA), the lead Proposition 65 enforcement agency, recently adopted new Prop 65 regulations. (Title 27, California Code of Federal Regulations, Article 6). The new regulations materially change the requirements for, among other things, the content and method of transmission of Safe Harbor “Clear and Reasonable” warnings under the Safe Drinking Water and Toxic Enforcement Act (the Act). The new regulations also, for the first time, specifically address internet sales at §25602 (b).
The new regulations do not become effective for two years or until August 30, 2018, allowing companies time to comply. A company may provide a warning that complies with the new regulations prior to the two-year effective date, and such a warning will be deemed to be “clear and reasonable.” §25600(b). A warning for a consumer product manufactured prior to the effective date of the new regulations is deemed to be “clear and reasonable” if it complies with the existing regulations. §25600(b). A company that is a party to a court-ordered settlement or final judgment establishing a warning method or content is deemed to be providing a “clear and reasonable” warning for that exposure for purposes of the new regulations, if the warning complies with the court order or judgment. §25600 (e).
The major changes affecting Prop 65 Warnings for consumer products are as follows:
- Warnings must include the word “WARNING” in all capital letters and bold print;
- Warnings must name one or more of the listed chemicals for which the warning is being provided;
- Warnings must include a link to the OEHHA Lead Agency Website;
- Warnings must include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”;
- Warnings for exposures to listed carcinogens must contain the words, “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. For more information go to www.P65Warnings.ca.gov”;
- Warnings for exposures to listed reproductive toxicants must contain the words, “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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov”;
- Warnings for exposure to both listed carcinogen and listed reproductive toxicants must contain the words “WARNING: This product can expose you to chemicals including [name of one or more listed chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov”;
- Warnings for internet purchases must include either the warning referenced above or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase; and
- Warnings must be prominently displayed with such conspicuousness as compared with other words on the label as to render them likely to be read.
Additional regulations address a variety of other products including but not limited to food and dietary supplements, alcoholic beverages, and food and beverage warnings at restaurants.
Prop 65 requires that the state publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. Prop 65 also prohibits businesses from discharging significant amounts of listed chemicals into sources of drinking water. The list of chemicals must be updated at least once a year and has grown to include more than 800 chemicals. Prop 65 requires businesses that do business in the State to provide a "clear and reasonable" warning before exposing anyone to a listed chemical, unless the business can show that the anticipated exposure level will not pose a significant risk of cancer or reproductive harm. The warning can be given by a variety of means. The new Prop 65 regulations materially change the requirements for warnings on products, labels, tags, packaging, and posting of signs for products, and now specifically addresses internet sales. By requiring that this information be provided, Prop 65 is intended to enable Californians to make informed decisions about protecting themselves from exposure to harmful chemicals.
A business found in violation of Prop 65 is subject to civil penalties of up to $2,500 per day for each violation and an injunction against selling or offering for sale the violating product. A violator is also subject to an attorney’s fees award in favor of the person or entity that served the Prop 65 notice whether the alleged violation is resolved by court action or settlement. Actions to enforce Prop 65 may be brought by the Attorney General, District Attorneys, City Attorneys of cities with populations above a specified threshold and by designated prosecutors. Frustration of the legislative intent of Prop 65 and abuse of those doing business in the State arise because actions may also be brought “by a person in the public interest” if the private action is commenced more than 60 days from the date that the person has given notice of an alleged violation and neither the Attorney General, District Attorney, City Attorney or prosecutor has commenced and is diligently prosecuting an action against the violation. New regulations proposed by the California Attorney General governing enforcement actions brought by a "private person in the public interest," denominated as a "Private Enforcer" under the new regulations, have also recently been adopted. Enforcement will be the subject of a soon-to-be released separate blog article.
Learn more about Prop 65 litigation.
Gary Wexler is a partner in the firm's litigation department with a practice that focuses on real estate. You can reach him at (310) 282-9470 or firstname.lastname@example.org.