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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.