Proposition 65: Compliance Issues

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Proposition 65: Compliance Issues


As of August 30, 2018, big changes went into effect for Proposition 65.  These changes include new warning obligations for Internet and catalog sellers, a limited “safe harbor” for certain retailers, and a great deal of ambiguity and uncertainty.  There are two issues we are seeing again and again, and which are worth special attention.

PROPOSITION 65:  BACKGROUND

Proposition 65 - DARTICProposition 65 is a warning law.  It neither limits nor prohibits the presence of any chemicals in consumer products.  For products sold in California, including interstate sales made to persons residing in California, a warning must be provided if they contain one or more of the chemicals found by California regulators–the Orwellian-sounding Developmental and Reproductive Toxicant Identification Committee (“DARTIC”)–to create some risk of cancer or reproductive harm. The list of such chemicals is vast and changing, with new chemicals added each year by the state.

Under Proposition 65, it doesn’t matter how the chemicals find their way into a product.  Recently, a California judge concluded that coffee had to bear a Proposition 65 warning because it contains acrylamide, a chemical produced in minute quantities as a by-product of the roasting process.  Never mind that in 2016 the World Health Organization removed coffee from its “possible carcinogen” list, that the Federal Drug Administration has advised California that it views Proposition 65 labeling of coffee to be misleading, and that the American Institute for Cancer Research includes coffee on its list of cancer-fighting foods. Word is that California may act by year’s end to exempt coffee from Proposition 65.  We’ll see.

PROPOSITION 65:  COMPLIANCE ISSUES

Can we use the short-form warning?  One of the big changes to Proposition 65 is the requirement that warning labels identify the chemical or chemicals contained in the product that triggered the warning.  For products manufactured prior to August 30, 2018, no such identification is required.  But, the new regulation provides for the use of a short-form warning label which does not identify such chemicals.  There are two requirements that need to be met to use the short-form warning label.  First, the font size must be at least in 6-point type.  Second, type must be no smaller than the largest font size used on the product for other consumer information. Website and catalogs can use the short-form warning only if the product in question bears a short-form warning label.

Do we have to use the warnings methods and approaches set forth in the regulations?  While warnings must be provided, the approach set out in the regulations is a so-called safe harbor that is not technically obligatory. By following the regulatory safe harbor requirements, however, you will be deemed to have provided the required notice to consumers under Proposition 65.  In contrast, deviating from this safe harbor rules can expose you to a challenge that adequate notice was not, in fact, provided.  There may be circumstances, though, in which following the letter of the regulations may be impossible, and you should consult with your lawyer if an alternative approach to notice is needed.

Of course, Proposition 65 is complex and raises many questions in its effective implementation.  As these issues arise and are dealt with by regulators and courts, we’ll keep our readers apprised of what we learn.  Of course, you should consult your lawyers on compliance with Proposition 65 under your specific circumstances.

 

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