January 26, 2017
California’s Prop 65 requires businesses with 10 or more employees to provide a clear and reasonable warning before knowingly and intentionally exposing individuals to chemicals that the state says cause cancer or reproductive toxicity. While the primary burden to warn consumers falls on manufacturers, Prop 65 applies to everyone in the supply chain; no one is exempt from liability.
This proposition has been around for 31 years, so what’s new? The Office of Environmental Health Hazard Assessment (OEHHA) recently came out with Article 6, which gives more specific guidance on the new product warning label. And, while this doesn’t go into effect until August 30, 2018, manufacturers and retailers can choose to comply now.
Here are the details on the new guidance:
- There’s an unlimited sell-through period. Products manufactured before August 30, 2018 may comply with the longstanding warning regulations, even if the product is sold after the effective date. Products manufactured on or after August 30, 2018 must comply with the new regulations.
- There’s a furniture-specific safe harbor, which clarifies that a separate Prop 65 label is not required for furniture. Manufacturers can put the Prop 65 warning on the product “in the same manner as other consumer information or warning materials that are provided on the product.” This means manufacturers can use the existing manufacturing label as a ‘billboard’ to display all product information.
- The amended regulation changes the language in the required warning. The warning now needs to list at least one specific chemical believed to cause both cancer and reproductive harm, or two (one believed to cause cancer and one believed to cause reproductive harm.) The manufacturer can select which chemical to list.
- The warning also is now required to contain a yellow hazard triangle symbol, although the symbol need not be printed in color if there is no other color on the label. The new warning reads:
The above is meant for example purposes only and while OEHHA doesn’t specify fonts, the regulation requires warnings to be prominently 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 read and understood by an ordinary individual under customary conditions of purchase or use.
- For internet sales, an online retailer must provide an online warning that must be viewed prior to purchase, even if the product itself contains a warning.
- Retailers are responsible for the placement and maintenance of warning materials received from suppliers; for warnings on any private label products and for warnings on any products for which they are they importer of record.
- Retailers MUST be able to provide the name and contact info for upstream companies upon request to OEHHA, the public enforcers or any private enforcer who serves a 60-day notice letter IF the requestor provides a description of the product with specificity in accordance with the regulation (this means they must ask for info on a specific sofa not just all sofas in your store).
- Aside from the warning on the law label or manufacturer’s label, retailers must either post the Prop 65 warning at each public entrance on an 8 ½ x 11” sign in 28-point font or stamped on each receipt in 12-point font (see warning label language above).
Many manufacturers label all their product, and while California consumers are used to these ubiquitous labels, consumers in the other 49 states are not and may have questions and concerns. HFA has a letter available for members to use to explain Prop 65 to their consumer. HFA members can log into the member portal to download the sample letter.