Prop 65 does not require a business to reformulate their products to remove Prop 65 listed chemicals from its products or production processes but simply requires that a clear and reasonable warning be given to any consumer in California exposed to the chemical. It provides how the warning must be given and what language should be used in the warning statement. The current requirements for Prop 65 permit generic warning language, such as: “WARNING: This product may contain a chemical known to the State of California to cause cancer or birth defects or other reproductive harm.” A business’s requirements to comply with Prop 65 will change beginning August 30, 2018.
What are the new consumer product exposure warning methods and content?
The amended Prop 65 regulations still require a warning label on products that include any of the almost 900 chemicals identified by the Office of Environmental Health Hazard Assessment (OEHHA) on the Prop 65 list if they are above the safe harbor level identified by OEHHA. The amended regulations, however, change the form and content required for the “safe harbor” warning provided to California consumers. Some of the more significant changes in the labeling requirements include:
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] [or] [birth defects or other reproductive harm]. For more information, visit www.P65Warnings.ca.gov |
WARNING: Cancer and Reproductive Harm— For more information, visit www.P65Warnings.ca.gov |
In sum, the new Prop 65 regulations still require a warning label be placed on any consumer product that contains a chemical identified by OEHHA to cause cancer or reproductive harm. However, while the current regulations allow for a “generic” label, the amended statute requires a label specifically identifying at least one chemical found in the product (unless a short-form on product warning is used).
Who must provide a Prop 65 warning?
OEHHA’s new regulations place the primary responsibility for providing the requisite Prop 65 warning on product manufacturers, producers, packagers, importers, suppliers and distributors. Businesses must either (1) label the product with the required warning or (2) provide notice and warning materials to the authorized agent for the retail seller and receive an acknowledgement that the notice and materials were received.
How can your business get compliant with the new regulations?
Businesses can use either the current or new regulations on products manufactured prior to August 30, 2018, at which time compliance with the new regulations will be required. Businesses must first determine whether any products sold to consumers in California include any of the chemicals identified by OEHHA requiring a Prop 65 warning label. Laboratory testing may be required to determine which, if any, Prop 65 chemicals are in each product. Even if your business currently labels products with a Prop 65 warning, the new regulations will require a determination of whether to use the truncated short-form warning label or the full warning label on each product. If the full warning will be used, each product will need a specific label identifying at least one of the chemicals identified by the business on OEHHA’s Prop 65 list.
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