Prop 65 Amendments Take Effect on August 30

SAN FRANCISCO—New amendments to Proposition 65 were passed in 2016, making warning signage regulations stricter, and are scheduled to take effect on August 30, 2018. In the first of a two-part exclusive, John Allen and Vaneeta Chintamaneni of  Allen Matkins  discuss the new warning regulations going into effect next month, how the amendments differ from previous warnings and what businesses need to know about the law.

GlobeSt.com: What is Prop 65?

Allen: Also called the California Safe Drinking Water and Toxic Enforcement Act, Prop 65 is a California right-to-know law that prohibits businesses with 10 or more employees from ‘knowingly and intentionally’ exposing individuals to any of the more than 800 chemicals known to California to cause cancer and/or birth defects or other reproductive harm (listed chemicals) without providing them with clear and reasonable warnings. Although Prop 65 safe harbor regulations have long provided guidance on the content and method of Prop 65 warnings that are presumed to be clear and reasonable under Prop 65, new warning regulations go into effect soon. These amendments to Prop 65 modify language for previous warnings and add tailored warnings in specific industries and for certain products.

GlobeSt.com: What have been the regulations of Prop 65 up to this point?

Chintamaneni: Generally, the previous regulations addressed three different types of exposures to listed chemicals: consumer product exposures, environmental exposures and occupational exposures. Prior to the new regulations, a warning was deemed clear and reasonable, and therefore precluded a business from Prop 65 liability, if the warning used the following language: ‘WARNING: This product contains a chemical known to the state of California to cause (cancer and/or birth defects or other reproductive harm).’

GlobeSt.com: What do businesses need to know about these new amendments to Prop 65?

Allen: The amendments increase the specificity of the content and method of delivery required to meet the Prop 65 warning requirement. With some exceptions, the amendments require the business to do the following: identify at least one of the specific listed chemicals in each risk category which has triggered the need for a warning, use specific language to identify the source of the exposure based on the type of listed chemical, provide a link to a state webpage to obtain additional relevant Prop 65 information, and employ the warning symbol  at the start of the warning sign.

For many types of exposures, the new regulations also identify methods in which a warning may be delivered, mandate font sizes to be used, require conspicuous signage and warnings so that individuals see and read the warnings prior to purchase or use of the relevant area, and specify that warnings must be provided in non-English languages if another language is used for product information or signage.

Additionally, the new regulations try to address changes in the ways that consumer products are sold. For instance, there are new provisions regarding the content and delivery of warnings for products sold and purchased through the Internet, in catalogs and on electronic devices.

One of the most significant changes to the regulations is that there are a now a number of tailored warnings which are specific to certain industries or types of exposures. These include warnings for restaurants and businesses that serve or sell food and beverages (both alcoholic and non-alcoholic), hotels, enclosed parking lots, industrial facilities, vehicle repair stations, service stations and designated smoking areas. For some tailored warnings, businesses will need to list at least one listed chemical for each risk category (i.e., carcinogen or reproductive toxin), provide information on the source of the exposure based on the listed chemical, and provide a link, among other things. For other tailored warnings, the amendments now provide precise language that can be used by businesses.