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Signs Signs, Everywhere a Sign* – New California Proposition 65 Warning Regulations Will Take Effect in 2018

Posted By Administration, Thursday, June 8, 2017


by Melissa Proctor, Polsinelli, P.C.


On August 30, 2016, California amended the Proposition 65 regulations with respect to the language that must be used by companies to give clear and reasonable warnings about exposure to listed chemicals in products that are sold within the state, as well as in certain establishments. The new regulations are intended to make the warning signs more meaningful to consumers. Companies that sell products in California or operate businesses in California, such as manufacturers, distributors and retailers, will be affected by the new regulations. The new regulations are slated to take effect on August 30, 2018. In the interim, companies may either use the current language requirements or begin using the language that will go into force in 2018.

By way of background, Proposition 65, otherwise known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (Title 27 CCR 25000-27001), was enacted in November 1986 to protect California citizens and the State's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals. Proposition 65 requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment so that they can make informed decisions about protecting themselves from exposure. Companies selling products in California are required to provide a "clear and reasonable" warning to consumers for listed chemicals unless exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm. The following provides a summary of the new Proposition 65 warning regulations:

Safe Harbor Warning for Consumer Products (Other than Food): The new language for exposure to carcinogens in non-food consumer products is as follows—

WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.

Similarly, the new language for exposure to reproductive toxins is as follows—

WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

For exposure to BOTH carcinogens and reproductive toxins, the new language is as follows—

WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause cancer, and [name of one or more chemicals], which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

The new warnings must be preceded by a yellow triangle outlined in black with an exclamation point in the center. For goods that are purchased online, the warning must be provided in its entirety, by including a clearly marked hyperlink using the word WARNING on the product display page, or by displaying the warning before the purchase is completed. If the product's current signage, label, or shelf tag is in languages other than English, then the new warning must also be provided in those languages as well.

Safe Harbor On-Product Labeling of Consumer Products: Shortened warnings must be provided on the products themselves or on their outer containers, boxes or wrappers, as follows—

WARNING: Cancer – www.P65Warnings.ca.gov

WARNING: Reproductive Harm – www.P65Warnings.ca.gov

WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov

The warning must also contain the triangular warning symbol, and the language shown above must be in the same font size as the largest font size used for other consumer information on the product, but no smaller than a 6-point font.

Safe Harbor Warnings on Food Products and Dietary Supplements: Warnings for these products do not have to include the triangular warning symbol, but the language must be set off from surrounding information and enclosed in a box, as follows—

WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.

WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals] which is/are known to the State of California to cause cancer, and [name of one or more chemicals], which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

Safe Harbor Warnings for Alcoholic Beverages: The new warning language for alcoholic beverages is as follows—

WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information, go to www.P65Warnings.ca.gov/alcohol.

For establishments serving alcohol, the warning can be provided on an 8½ by 11 inch sign that is placed at eye level in a conspicuous location at each public entrance, or on a menu or other list describing the alcoholic beverages served. For retail outlets in which alcoholic beverages are sold, the warning can appear in a notice or sign that is no smaller than 5 by 5 inches at each retail point of sale or display.

The regulations also impose new warning requirements for: prescription drugs, medical services (i.e., dental and emergency medical), restaurants; raw wood products; furniture; diesel engines; vehicles; recreational vessels; parking garages; amusement parks; petroleum products; service stations and vehicle repair facilities; and, designated smoking areas.

In addition, to minimize burdens on retailers, a warning label may be affixed to the product itself by the manufacturers, producers, packagers, importers, suppliers or distributors, or they can provide written notice to the retailer regarding the required warning for the product. However, retailers may still be held liable for failure to provide adequate Proposition 65 warnings for: (a) their private label products; (b) failing to warn in instances where they have received warning materials from supply chain partners about the products; (c) knowingly adding a listed chemical to a product; (d) modifying or obscuring a product's warning label; (d) having actual knowledge of potential exposure triggering warning requirements; or, (e) failing to warn where there is no other supply chain partner that is subject to Proposition 65 for purposes of the product in question.

As noted above, the new requirements will take effect on August 30, 2018. Affected companies are urged to review the new regulations carefully, seek guidance from professionals where warranted, and take steps now to bring their operations and product lines into compliance by the 2018 deadline. In the meantime, companies can continue abiding by the current warning requirements or they may begin using those outlined in the new regulations.

* Source: The song "Signs Signs, Everywhere a Sign" was released by the Five Man Electrical Band in 1970.


Melissa Proctor is a Shareholder with Polsinelli, P.C. With significant experience in the customs laws and regulations, export controls, economic sanctions, and international trade, Melissa is committed to understanding companies' operations and providing assistance geared toward helping them reach their specific business and operational goals. She may be reached at (602) 650-2002 or via e-mail at mproctor@polsinelli.com.

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Tags:  Prop 65  Proposition 65 

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