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Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”)

As businesses are well aware, California’s Prop 65 rules have been around since 1986 and now list over 1,000 chemicals the State of California believes to potentially cause cancer, birth defects or other reproductive harm. Under Prop 65, businesses with more than 10 employees, are required to provide “clear and reasonable” warnings to consumers before knowingly and intentionally exposing individuals to chemicals on the list.

Beginning in 2018, and specifically for products manufactured after August 30, 2018, there are now new warning regulations with respect to the language used in the warning itself as well as who is required to provide such warnings.  As a result, the new regulations now include warning requirements for both internet and catalog sales.

First, for internet sales, the website warning must either (a) be placed on the product’s display page, (b) be given a hyperlink using the work “WARNING” on the product display page, or (c) displayed, with a tie to the product for which the warning is being given, to the consumer before the purchase is completed (such as having the warning appear when the shopper enters a California zip code into the shipping information fields during the checkout process). It is important to note that a warning does not satisfy Prop 65 if the purchaser must search for it.

Next, for catalogs, the warnings must be “closely associated” with the product. It is not acceptable to provide a list of warnings at the end of the catalog. Therefore, the warning must be on the actual product page.

To comply with the safe harbor rules regarding warnings, the warnings for consumer products must say:

  • the product “can expose you to” a Prop 65 chemical;
  • the name of at least one chemical that prompted the warning;
  • provide the internet address, P65Warnings.ca.gov, which includes additional information; and
  • a triangular yellow warning symbol 

However, subject to certain other requirements, warnings on product labels can be shortened as follows, and do not require that a specific chemical be listed.  For example:

Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for “clear and reasonable” warnings. According to the regulations, the new system clarifies that manufacturers have the primary responsibility to provide Prop 65 warnings vs. retail sellers i.e. businesses sell or otherwise provide consumer products directly to consumers by any means, including via the Internet.  Manufacturers can choose whether to put the warnings on labels to their products or to provide notice to retailers that specifically identifies the product that requires a warning and provides all warning materials.

Due to the new requirements of Prop 65, it is clear that this law’s impact will continue to expand and impact all businesses making sales of products that have the potential to end up in the hands of consumers in California.  While complying with Prop 65 can be an onerous process, it is important to remember that bringing a Prop 65 action is relatively easy and lucrative for private plaintiffs and their counsel.  In fact, the total amount of money paid by defendants via settlements in 2017 was $25.8 million.  As a result, Prop 65 creates a huge incentive for lawyers to get into this business as “bounty hunters”.

If your business sells products either directly or has the potential to end up in the hands of consumers in California, contact our office to discuss what steps you should take to avoid becoming entangled in unnecessary litigation over a potential Prop 65 violation.