by Dave Schmitt
Companies that sell, distribute, or manufacture goods in California should be aware that the California Office of Environmental Health Hazard Assessment (OEHHA) has now introduced the final amendments to the "clear and reasonable warnings" required by California Proposition 65. This unique California law purports to protect Californians from "exposure" without "warning" to a list of over 900 chemicals that the state has identified as causing cancer and/or reproductive harm. Proposition 65 does not prohibit the use of any particular chemical, but rather requires a warning before exposure. Following the amendments, businesses that sell products in California will have to revamp their Proposition 65 warnings and provide more detail to consumers than they are currently providing. For instance, warnings must specifically identify at least one toxic chemical, hyperlink to OEHHA's new website, and use specific language that differs between consumer products, food, alcohol, and many other categories. These far-reaching changes have been in the works since 2014, undergoing minor revisions throughout, many of which have been discussed in prior C&B blog posts.
To illustrate the changes, take a before-and-after look at a Proposition 65 warning:
Although the new warning requirements will not take effect until August 30, 2018, we believe it makes sense to update your labeling and packaging sooner rather than later. Looking ahead, companies that conduct business in California should assess the impact of the new regulations and develop an implementation strategy. Slapping on a general Proposition 65 warning will no longer be sufficient. Instead, products must undergo detailed testing and analysis and be labeled with tailor-made warnings.
In addition, companies should keep detailed, verifiable, and readily accessible records on dates of manufacture of products containing the old warning language to ward off any challenges.
Proposition 65 already encourages a beacon for litigation; these changes will most likely generate even more lawsuits. Don't get caught out of compliance.