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Proposition 65: New Labeling Requirements for Businesses Selling Products in California

Posted on Mon, Feb 20, 2017 @ 01:23 PM

MichaelBrumm.jpgMany consumers often wonder why certain products contain a label warning about cancer in the State of California. The warning typically reads “This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.” When seeing such a label, the consumer might think California is the only state thoroughly researching the chemical components of products, and the only state genuinely concerned with notifying consumers of cancer risks. While California’s concern for chemicals causing cancer risks to consumers is undoubtedly valid, the explanation for the above warning is the product of a California law called The Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as “Proposition 65”.

Proposition 65 requires businesses that sell products in California to provide a “clear and reasonable warning,” provided that the product being sold includes at least one of approximately 900 chemicals known by the State of California to cause cancer or birth defects.

Under the current regulatory regime, the method to transmit the warning must be “reasonably calculated…to make the warning message available to the individual prior to exposure” and provide that “the chemical in question is known…to cause cancer, or birth defects or other reproductive harm.”

Effective August 30, 2018, new regulations modifying what constitutes a “clear and reasonable warning,” like the one above, will be implemented by the California Office of Environmental Health Hazard Assessment (the “OEHHA”). The new regulations require additional elements be present on the warning. Most notably, the name of the specific chemical necessitating the warning must be explicitly listed in the warning. Even more, if the warning is being provided because one component chemical can cause cancer and another separate chemical can cause birth defects or reproductive harm, then both chemicals must be explicitly listed in the warning.

Additionally, the warning label must also include the website link to the Proposition 65 informational website, www.P65Warnings.ca.gov.

This non-exhaustive list of new requirements shows, quite clearly, that the regulatory framework of Proposition 65 has substantially increased in complexity with the newly enacted regulations. Cors & Bassett highly recommends that any business selling products in California seek legal counsel to ensure compliance, regardless of the type of consumer products, food and beverage goods, or even medical or dental products being sold by such business. Our office is available to help guide you and your business through this multifaceted regulatory regime.

For further guidance, please contact Michael Brumm at mbb@corsbassett.com or (513) 852-8218.

Two Cors & Bassett Attorneys Named Cincy Leading Lawyers 2017

Posted on Thu, Feb 09, 2017 @ 01:23 PM

Cors & Bassett is proud to announce that two of the firm’s attorneys have been named as Cincy Leading Lawyers 2017. The attorneys are Stephen S. Holmes (Business, General) and Jack B. Harrison (Litigation).

Stephen S. Holmes represents family- and privately-owned business clients, providing experienced guidance in essentially all major areas of law related to the operation of a business.

Jack B. Harrison’s practice focuses on litigation and labor and employment. He represents clients in the areas of general liability defense and product liability litigation, administrative and regulatory proceedings, appellate litigation, and general business and commercial litigation.

Cincy Leading Lawyers are selected by colleagues throughout Cincinnati, Northern Kentucky, and Southeast Cincinnati by voluntary ballot. After extensive fact-checking and approval by an advisory board, 219 lawyers were selected in various specialties.

Cors & Bassett, a Cincinnati, Ohio law firm, has consistently provided the highest quality legal services to our business and individual clients in Ohio, Kentucky, the Midwest region, and across the nation since 1929. We are one of the most respected and longest tenured firms in the region. We have purposely remained at a size specifically designed to deliver the depth, breadth, and quality of legal services you’d expect from a large national law firm, but delivered in the personalized, attentive manner you’d expect from a cutting edge boutique law firm. We are a full service law firm with attorneys experienced in all major practice areas.

California Prop 65 Warning Labels Are About To Change

Posted on Thu, Feb 09, 2017 @ 12:03 PM

by Dave Schmitt

DaveSchmitt.jpgCompanies manufacturing or distributing products in California should already be aware that California Prop 65 requires warning labels be affixed to all products containing substances which the State has identified as potential carcinogens or which may cause birth defects or other reproductive harm.  

 

As described in more detail in a previous blog post, in January, 2015 California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.


The first dealt with new content for “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings.

 

California also proposed a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided.” If finalized as currently written, the new website regulation will require a product manufacturer, producer, distributor, or importer subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

 

After a series of public hearings, the State has now formally proposed the new content for Prop 65 warning labels. The proposed changes aren’t dramatic, but will require new labels once they become effective. For instance, the “new” labels will require a new icon featuring an exclamation point inside of a colored triangle. In addition, the word WARNING will be larger and in boldface.

 

Perhaps most importantly, the labels will be required to identify the specific substance that triggers the labeling requirement. For example, a “new” label might read:

 warning.png

 

Anyone wishing to submit written comments on the proposed changes must do so by April 26, 2016. Comments should be sent by email to: P65PublicComments@oehha.ca.gov

 

The new rules are slated to be finalized in November, 2016 and will take effect two years later, near the end of 2018. This should provide ample time for the affected businesses and industries to review their products and revise their Prop 65 warning labels.

 

Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com