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Big Changes Proposed by California to Proposition 65's Warning Requirements

Posted By Administration, Thursday, February 12, 2015
Updated: Wednesday, February 11, 2015

by Melissa Jones, Stoel Rives, LLP

Nearly a year after it issued a pre-regulatory proposal concerning changes to the warning requirements for Proposition 65 (Prop 65), California's Office of Environmental Health and Hazard Assessment (OEHHA) released a Notice of Proposed Rulemaking. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a broad law that requires companies to warn California consumers if their products contain a chemical "known to the state of California" to cause cancer or reproductive harm. The list of such chemicals is substantial and includes chemicals such as lead, cadmium, phthalates, among many others. OEHHA has stated that it is proposing changes to the warning regulations to address concerns that the current safe harbor Prop 65 warnings lack enough specificity to ensure that the public receives useful information about potential exposures.

The Notice, issued by OEHHA in January 2015, outlined proposed changes to the warning requirements under Prop 65's implementing regulations. OEHHA originally published pre-regulatory proposed changes last spring and subsequently held a workshop and accepted comments from the public. The proposed regulatory amendments issued in January 2015 include some modifications to the original proposal in response to industry comments, but nonetheless contain significant changes that will impact companies selling products in the state of California, including manufacturers, distributors, and retailers.

Notably, the regulations seek to ease the burden on retailers, noting that there is a preference for manufacturers instead of retailers to be responsible for providing warnings. Nonetheless, under Proposition 65, any company in the chain of distribution can be held liable for violations of Proposition 65 and retailers need to remain vigilant in complying with the law.

The proposed regulations provide guidance on the methods and content for safe harbor warnings, including the statement that a person "can be exposed" to a listed chemical and include some significant changes to the warning regulations. Under the current regulations, warning language stating that the "product contains a chemical known to the State of California to cause" cancer, birth defects, and/or other reproductive harm is permitted. To be considered a "safe harbor" warning, Prop 65 warnings would need to contain the following information:

  1. A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline (though the symbol may be printed in black and white if other signage or labeling for the product is not in color)

  1. The word "WARNING" in all capital letters and bold print
  2. The language: "This product can expose you to a chemical…"
  3. Specific warning language based upon the potential physiological effect of exposure (e.g., cause cancer and/or birth defects or other reproductive harm)
  4. Specific identification of certain chemicals, as discussed below
  5. Reference to an OEHHA Prop 65 website

As noted above, the proposed regulations also contemplate that warnings specifically identify the following chemicals to the extent exposure to such a chemical requires a warning under Prop 65:

  • Acrylamide
  • Arsenic
  • Benzene
  • Cadmium
  • Carbon monoxide
  • Chlorinated tris
  • Formaldehyde
  • Hexavalent chromium
  • Lead
  • Mercury
  • Methylene chloride
  • Phthalates

The requirement of specifically identifying certain chemicals to be considered a safe harbor warning is a significant change from the existing regulations, which do not require that a company specifically identify in the Prop 65 warning which chemicals are present in the product. OEHHA has stated that in selecting these chemicals, it considered the following factors:

  • Widespread prevalence of the listed chemical in products
  • Potential for significant exposure to the listed chemical through human interactions with products
  • Recent Prop 65 enforcement activity
  • Recognizability of the chemical name among the general public
  • The availability of resources to the public about toxicity, doses of concern, and ways to prevent or reduce exposure

The regulations also contemplate the creation of an OEHHA website, which as noted above, would be referenced in the Prop 65 warning. OEHHA has provided some information about how it would operate and maintain the website. It could, for instance, request information from companies about warnings, which OEHHA would then post on its website. The regulations do not address whether OEHHA would have any enforcement ability to require companies to make the requested disclosures.

The effective date of the regulatory changes would not occur until two years after adoption of the regulations to provide manufacturers, distributors, and retailers a "sell through" period. Nonetheless, companies should stay apprised of the developments with regard to the potential changes to the Prop 65 warnings, since some of the proposed changes (especially the proposal to require that the warnings specifically identify certain chemicals) may require a fair amount of planning to ensure compliance.

A public hearing on the proposed changes will be held on March 25, 2015 and the comment period for this proposed regulatory action closes on April 8, 2015.

Melissa Jones, Partner, Stoel Rives, LLP, is a trial lawyer who provides experienced and practical counsel in complex business disputes, appellate matters, and internal investigations. Her practice includes an emphasis on Proposition 65 defense as well. Melissa's civil experience includes litigating claims for breach of contract, fraud, negligent misrepresentation, misappropriation of trade secrets, products liability, false advertising and unfair competition. She regularly defends companies in litigation claims related to California's Proposition 65 and Unfair Competition Law (17200) and advises companies on Prop 65 compliance. She also advises clients on California's Safer Consumer Products Regulations and other California regulations. Melissa may be contacted at

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Tags:  Product Labeling  Prop 65 

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