CA Prop 65, known as the Safe Drinking Water and Toxic Enforcement Act, is the law requiring all products sold in California to have labels providing “clear and reasonable warnings” of any harmful chemicals those products might contain. There are over 800 chemicals listed under Prop 65. Chemicals known to cause cancer, birth defects, or other reproductive harm are required to be put on the warning label.
Changes to Prop 65 starting on August 30, 2018
On August 30, 2018, the new regulations about warning labels went into effect (https://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=IA8182E38A29E47B3AEA10A9AD288F452&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default) )
Prior to August 30, 2018, warning labels simply needed to state that a listed chemical is present in a product, but they were not required to disclose what the chemical is, where to find it, how consumers will be exposed to it, how to reduce exposure, or what the level of risk is.
Effective August 30, 2018, the manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with Prop 65 either by providing a clear and reasonable warning on the product label or by providing a written notice directly to the authorized agent for a retail seller which:
(1) States that the product may result in an exposure to one or more listed chemicals;
(2) 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;
(3) Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet;
(4) 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.
If the manufacturer, producer, packager, importer, supplier, or distributor of a product is providing a written notice directly to the authorized agent for the retail seller the notice must be renewed and receipt of the renewed notice confirmed electronically or in writing by the retail seller’s authorized agent no later than February 28, 2019, then annually thereafter during theperiod in which the product is sold in California by the retail seller. An additional notice is required within 90 days when a different or additional chemical name or endpoint (cancer or reproductive toxicity) is included in the warning. Previously, internet sales were not directly included in Proposition 65; now internet sales have regulations guiding the arrangement of warnings on webpages listing products.
What is a “clear and reasonable” warning under Prop 65?
A warning meets the requirements of being “clear and reasonable” if the name of one or more of the listed chemicals in the consumer product or affected area for which the warning is being provided is included in the text of the warning. Where a warning is being provided for more than one endpoint (cancer and reproductive toxicity) the warning must include the name of one or more chemicals for each endpoint, unless the named chemical is listed as known to cause both cancer and reproductive toxicity and has been identified in the warning.
Consumer product exposure warnings must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use.
Environmental exposure warnings must be provided in a conspicuous manner and under such conditions as to make the warning likely to be seen, read, and understood by an ordinary individual during normal daily activity.
What types of chemicals are on the Prop 65 list?
The list contains a wide range of naturally occurring and synthetic chemicals that are known to cause cancer or birth defects or other reproductive harm. Listed chemicals may be used in manufacturing and construction, or they may be byproducts of chemical processes, such as motor vehicle exhaust. (See “May 25, 2018 Proposition 65 List” https://oehha.ca.gov/proposition-65/proposition-65-list )
IMPORTANT: Warning labels need to include three main elements:
(1) The name of at least one chemical must be listed.
(2) A link to a website containing Proposition 65 information, which will have more details on health effects and ways to reduce and/or eliminate exposure, must be prominently displayed.
(3) A yellow and black triangle warning symbol must always be located on the label (as pictured below).
Other information that will now be required (starting August 30, 2018) on the warning label includes: (1) specific exposures, (2) website warnings for the products, and (3) warnings in more languages than English. (4) Additionally, labels must be written in six-point or larger font.