If you're modifying packaging or introducing a new product, it may be a good time to update your Proposition 65 warnings. On August 30, 2016, California’s Office of Administrative Law approved the adoption of amendments to Article 6 of the California Code of Regulations, which sets forth safe harbor warning requirements for Proposition 65.
Proposition 65 requires companies doing business in California to warn consumers about potential exposures to certain chemicals, like formaldehyde, phthalates, and lead. There are over 900 chemical exposures requiring warnings, and the rules apply to any good sold within the state, not just to California-based manufacturers and retailers. Failure to warn properly can result in severe monetary penalties of up to $2,500 per violation, per day.
The regulations provide "safe harbor" warnings that are deemed to satisfy the law. This amendment significantly changes those safe harbors. For example, warnings on most consumer goods are now required to: (1) include a triangular warning symbol in addition to the word “WARNING;" (2) identify at least one chemical for each type of exposure (cancer, reproductive harm, or both); and (3) provide the URL of the Proposition 65 warnings website, www.P65Warnings.ca.gov. In addition, the amended regulation sets forth specific requirements for warnings on websites and in catalogs, as well as clarifying when foreign language warnings are required.
The new warning requirements will officially take effect on August 30, 2018, with two notable exceptions. First, products manufactured prior to the effective date will not be subject to the new requirements. Second, warnings set forth in court-ordered final judgments will continued to be deemed “clear and reasonable” for the exposures covered by those judgments. Until the requirements take effect, companies have the option to continue using the old safe harbor warnings, or to begin using the new warnings.
Manufacturers who are introducing new products or modifying labeling on existing products prior to August 30, 2018 may find it cost effective to incorporate the new warning requirements ahead of time. Womble Carlyle can help.