California Requires New Prop 65 Warning Labeling

California has adopted new rules under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, which regulates 970 chemicals that have been determined by the state of California to cause cancer, birth defects or other reproductive harm. The updated regulations necessitate changes to Prop 65 warning labeling and go into effect August 30, 2018.

Prop 65 requires businesses with 10 or more employees to give a clear and reasonable warning to individuals before knowingly and intentionally exposing them to a chemical listed as known to cause cancer or reproductive toxicity. Under its existing regulations, it establishes general criteria for providing “clear and reasonable” warnings. These regulations also provide safe harbor, non-mandatory guidance on general message content and warning methods for providing consumer product, occupational and environmental exposure warnings. The new regulations proposed for adoption retain the “safe harbor” concept by giving a business the opportunity to use warning methods and content that California’s Office of Environmental Health Hazard Assessment (OEHHA) has deemed “clear and reasonable.” Alternatively, they may use any other warning method or content that is clear and reasonable under the act.

In proposing the new regulations, OEHHA claims that existing safe harbor warnings lack the specificity necessary to ensure that the public receives useful information about potential exposures. It also notes that communication technology has progressed since the existing regulations were adopted and that the demographics of California have also shifted such that there is a much higher percentage of the population that speaks limited or no English.

The new regulations will require the use of a yellow triangle pictogram containing an exclamation point for nonfood products; warning statements indicating that the product “can expose” users to chemicals known by the state to cause cancer or birth defects, compared to the earlier version that only required the warning state the product “contained” these chemicals; identification of chemicals within the product may result in cancer or birth defects; a URL for a OEHHA website containing additional information; presentation of the warnings in additional languages; special rules for Internet and catalog sales; and for food products, formatting requirements that would enclose the warning in a box separate from other label information.

The state has published full details on the changes here.

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