WARNING: Are You 2018 Compliant?

MMMK Client Alert – Proposition 65 Clear and Reasonable Warnings

May 1, 2018

Proposition 65, an initiative officially known as California’s Safe Drinking Water and Toxic Enforcement Act of 1986, is a right-to-know statute that requires California to publish a list of chemicals known to cause cancer or reproductive toxicity. Over the past 30 years, the list has grown to include approximately 900 chemicals. Proposition 65 requires businesses to provide “clear and reasonable” warnings to consumers when their products cause significant exposures to one or more of these listed chemicals.

When the original warning requirements took effect in 1988, most Proposition 65 warnings did not identify chemicals by name or provide information about how a consumer may be exposed to them. Instead, fairly generic warning language was deemed clear and reasonable by California’s Office of Environmental Health Hazard Assessment (“OEHHA”), the agency responsible for administering Proposition 65. In August of 2016, OEHHA adopted new regulations that amend the warning requirements for businesses seeking to achieve safe-harbor protection for their products. These regulations will take full effect on August 30, 2018. Given the substantial differences between the old and new safe-harbor method and content, businesses that manufacture, distribute, or sell products subject to a warning should consider updating their Proposition 65 compliance programs.

What’s Next for Your Business?

The new Proposition 65 warning regulations become effective on August 30, 2018 and will apply to consumer products manufactured after that date. Businesses in compliance with the existing safe-harbor warning regulations are safe in the interim, but should not wait to begin assessing their Proposition 65 compliance programs and considering changes to their consumer product warnings.
Businesses responsible for providing warnings should be careful to ensure that their labeling complies with OEHHA’s detailed regulations and that they are appropriately incorporated into new systems such as online and catalog sales. Early adoption of the new safe-harbor warning method and content will make it less likely that your business will face significant Proposition 65 litigation risks.

Martin, Magnuson, McCarthy & Kenney’s Product Liability team provides strategic advice and counseling to a variety of companies on regulatory compliance, including labeling requirements and Proposition 65. For more information about Proposition 65’s Clear and Reasonable Warning requirements or for help implementing the new regulations for your business, please contact Jennifer A. Creedon at jcreedon@mmmk.com, (857) 957-0683.