New consumer warnings will be required under California’s Prop 65 on August 30, 2018. On September 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a final rule amending Article 6 of the regulations implementing Proposition 65 (Prop 65) that requires enhanced warning messages. Prop 65 requires a “clear and reasonable” warning on products that expose California consumers to chemicals of concern (“Prop 65-listed chemicals”). The new regulation has changed what constitutes a “clear and reasonable” warning. As the final rule becomes effective on August 30, 2018, businesses should begin to assess their products, consider the clear and reasonable warning requirements, and prepare for the deadline to minimize the risk of enforcement litigation.
The final rule imposes requirements on content and methods of transmission, which includes disclosure of one or more Prop 65-listed chemicals that resulted in the warning and an accompanying symbol. An abbreviated warning, however, will be permitted when a company provides an “on-product” warning. If an “on-product” warning is used, the business need not disclose the specific Prop 65 chemical(s).
Until the August 30, 2018 effective date, companies selling into California can use either the old or the new regulatory warnings. Indeed, businesses are not required to re-label products that are already in the stream of commerce. OEHHA has ensured that “the regulations allow the old safe harbor warnings to remain and be considered compliant if the product was manufactured prior to the effective date of the new regulations.” As such, if a business is selling into California, compliance with the new regulatory warnings must be in effect on all manufactured products on August 30, 2018.
It is prudent for businesses to begin the compliance process shortly because it will take time to assess which products are sold into California, to design new product labels and/or compliant materials, to approve such materials, and to implement the necessary changes.