It’s Time: New Prop 65 Warnings are Required August 30, 2018

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In November 2017, we advised readers of Conkle, Kremer & Engel’s blog that products sold in California would become subject to new Proposition 65 warning requirements beginning August 30, 2018.  The new “Clear and Reasonable Warning Regulations” from California Office of Health Hazard Assessment (OEHHA) significantly changed warning requirements for affected products that are manufactured on or after August 30, 2018.  Among other changes, the new regulations affect the safe-harbor warning requirements that govern the language, text, and format of such warnings, and also impose downstream warning mandates through retail, online and catalog sales channels. Generally, some of the major changes that companies selling consumer products should be aware of include:

  • The “warning symbol” :  A graphic “warning symbol” is now required on consumer products, other than food products. The “warning symbol” must be printed in a size no smaller than the height of the bolded word “WARNING,” and should be in black and yellow, but can be in black and white if the sign, label, or shelf tag for the product is not printed using the color yellow. The entire warning must be in a type size no smaller than the largest type size used for other “consumer information” on the product, and in no case should be smaller than 6-point type.
  • Listing of a specific chemical:  Warnings must now specifically identify at least one listed ingredient chemical for each toxicological endpoint (cancer and reproductive toxicology) and include a link to OEHHA’s new website P65Warnings.ca.gov. Certain special categories of products, such as food and alcoholic beverages, have a specialized URL that must be used instead.
  • New warning language:  Warning language must now warn of an exposure to a chemical or chemicals from the product, rather than just warn that the product contains the chemical or chemical. For example, “ WARNING: This product can expose you to diethanolamine, which is known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.”
  • Internet and catalog requirements:  For internet sales, warnings must be provided with a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before completion of the transaction. It will not be sufficient if the product sold on the internet bears the required label, but the internet point of purchase listing does not. For catalog sales, a warning must be provided in a manner that clearly associates it with the item being purchased.
  • Short-form warnings:  The regulations allow the use of certain abbreviated “short-form” warnings, which may omit the identity of any specific chemical, only if the warning is printed on the immediate container, box or wrapper of the consumer product or is affixed to the product.  For example, “ WARNING: Cancer – www.P65Warnings.ca.gov.”  If a short-form warning is used on the product, the same short-form warning may be used for internet and catalog sales.

The regulations seek to minimize the burden on retail sellers of consumer products, but there are some obligations affecting resellers. Manufacturers, producers, distributors, and other upstream businesses comply with warning requirements if they affix a clear and reasonable warning to the product, or provide written notice and warning materials to an authorized agent of a retailer, among other requirements.  Retailers who receive products with a Proposition 65 warning on the label, or who receive proper notice that a warning is required, are responsible for placement and maintenance of internet warnings for those products before selling to consumers in California.  Retailers should only be liable for Proposition 65 violations under limited circumstances, such as if they cover, obscure, or alter a product’s warning label, or if they receive notice and warning materials but fail to display a warning, including catalog and internet warnings preceding consumer sales into California.

The particular requirements for each specific product can vary, so manufacturers and resellers are well-advised to seek qualified counsel to review their circumstances before committing to potentially costly label and website changes that may not comply with the new requirements.  Conkle, Kremer & Engel attorneys stay up to date on important regulatory developments affecting their clients in the manufacturing and resale industries, and are ready to help clients navigate the changing regulatory landscape in California and elsewhere.

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October 2018 Update

H. Kim Sim of CK&E was interviewed and quoted extensively in ChemicalWatch about the difficulties manufacturers face in implementing the “very confusing and very complex” requirements of the new warning label requirements of Prop 65.  For example, as Kim said, “The requirement that manufacturers name at least one substance for which they are providing warning has proven particularly challenging. Determining which one to include ‘can be tricky for companies to decide’, she said. ‘Is one more scary to the public than another?'”

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WARNING: Are Your Products and Websites Ready for the New Prop 65 Requirements?

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California’s Office of Health Hazard Assessment (OEHHA) has issued new Proposition 65 Warning Regulations that will go into effect on August 30, 2018. It is important for companies to understand the changed regulations and be proactive in adapting their product labels and even internet marketing to adapt to the new regulations.  The coming changes have introduced a variety of new concepts, imposing additional burdens on businesses selling their products in California, and making it easier for plaintiff Prop 65 attorneys and groups to bring costly private enforcement actions.

The OEHHA has made significant changes to the safe-harbor language requirements that govern the language, text, and format of such warnings. The new regulations introduce the concept of a “warning symbol,” which must be used on consumer products, though not on food products. The “warning symbol” must be printed in a size no smaller than the height of the word “WARNING,” and should be in black and yellow, but can be in black and white if the sign, label, or shelf tag for the product is not printed using the color yellow.

Warnings must now also specifically state at least one listed chemical found in the product and include a link to OEHHA’s new website www.P65Warnings.ca.gov.  These are examples of the new format for more specific warnings:

  • For exposure to carcinogens: “ WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”
  • For exposure to reproductive toxins: “ WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”
  • For exposure to both carcinogens and reproductive toxins: “ WARNING: This product can expose you to chemicals including [name of one or more listed chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”

Certain special categories of products, such as food and alcoholic beverages, have a specialized URL that must be used. For example, warnings on food products must display the URL www.P65Warnings.ca.gov/food.

Recognizing that many consumer products have limited space “on-product” to fit the long-form warnings, the OEHHA has enacted new regulations allowing abbreviated “on-product” warnings. This short warning is permissible only if printed on the immediate container, box or wrapper of the consumer product. An example of the required format for the abbreviated warnings is:

  • WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov

The new regulations also specifically address internet sales for the first time. Warnings must be provided with a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before completion of the transaction.  It will not be sufficient if the product sold on the internet bears the required label, but the internet point of purchase listing does not.

The particular requirements for each specific product can vary, so manufacturers and resellers are well-advised to seek qualified counsel to review their situation before committing to potentially costly label and website changes that may not comply with the new requirements.  Conkle, Kremer & Engel attorneys stay up to date on important regulatory developments affecting their clients in the manufacturing and resale industries, and are ready to help clients navigate the changing regulatory landscape in California and elsewhere.

Although the new regulations take effect August 30, 2018, and the new warning labels are required for products manufactured after that date, companies can begin using the changed labels now. It is definitely not advisable to wait until August 2018 to begin making the required changes.

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California Green Chemistry Initiative: Are You Manufacturing or Selling a “Priority Product”?

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The new Safer Consumer Products (SCP) regulations require the California Department of Toxic Substances Control (DTSC) to initially identify up to five proposed “Priority Products” or categories of products containing what DTSC regards as “Chemicals of Concern.”  By April 1, 2014, DTSC will publish a list of Priority Products selected because of their use of one or more of 164 “Priority Chemicals” listed on the “Initial Candidate Chemicals” list.  Scroll to the bottom of this post for the full list of the 164 Priority Chemicals.

There will be a public review and comment period following publication of the Priority Products list.  It has been widely speculated that nail polish, formaldehyde-based hair straighteners, carpet adhesives and furniture seating foam are among the possible Priority Products that may be identified first by DTSC.

Once a product is identified as a Priority Product, manufacturers or other responsible entities (including importers, assemblers and even retailers) will be required to notify DTSC that their product is a priority product.  The manufacturer or other responsible entity then has some unpleasant options:  It can remove the product from sale, reformulate to remove or replace the chemical of concern in the product, or perform a complex “Alternatives Analysis” to retain the chemical in the product.  The Alternatives Analysis report must be submitted to DTCS for evaluation to determine if there are adverse environmental or public health impacts associated with the product that can be remedied by regulatory responses.  The regulatory responses could require product warnings to consumers, restrictions on the use of the chemical during manufacture, place of sale restrictions, administrative controls, further research regarding alternative ingredients, end-of-life disposal requirements, or even a ban on sales of the product in California.

Manufacturers, retailers, importers and assemblers of consumer products for sale or distribution in California should diligently keep informed about developments in the DTSC’s “Candidate Chemicals” list (currently 1,060 chemicals),  as well as the development of the Priority Products list.  Manufacturers should also consider whether reformulation of their products to exclude the priority chemicals from the “Initial Candidate Chemicals” list is possible.  In addition, it is important that businesses establish clear agreements among manufacturers, importers, distributors, retailers and others in the supply chain specifying who will be responsible for complying with California’s tough new regulatory program, including responding to DTSC if a product is identified as a priority product.  Conkle, Kremer & Engel’s lawyers stay current on the latest developments, and guide the firm’s clients through the thicket of expanding regulatory issues affecting their businesses.

The 164 chemicals found on the “Initial Candidate Chemicals” list, from which the Priority Products will be identified by DTSC, are:

1,1,1,2-Tetrachloroethane 1,1,1-Trichloroethane; Methyl chloroform
1,1,2,2-Tetrachloroethane 1,1,2-Trichloroethane
1,1-Dichloroethane 1,2,3-Trichloropropane
1,2-Diphenylhydrazine; Hydrazobenzene 1,2-Epoxybutane
1,3-Butadiene 1,3-Propane sultone; 1,2-Oxathiolane 2,2-dioxide
1,4-Dioxane 2,2-Bis(bromomethyl)propane-1,3-diol
2,4,6-Trinitro-1,3-dimethyl-5-tert-butylbenzene; musk xylene 2,4,6-Tri-tert-butylphenol
2,4.6-Trinitrotoluene (TNT) 2?Acetylaminofluorene
2-Methylaziridine (Propyleneimine) 2-Methylphenol, o-Cresol
2-Nitropropane 3-Methylphenol; m-Cresol
4,4′-Methylenedianiline; 4,4’-Diaminodiphenylmethane (MDA) 4-Bromophenyl phenyl ether, Bromophenyl Phenyl Ether
4-Nitrobiphenyl 4-Tert-Octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol
Acetaldehyde Acetamide
Acrylamide Acrylonitrile
Allyl chloride Aluminum
Aniline Aromatic amines
Aromatic Azo Compounds Arsenic and inorganic arsenic compounds
Asbestos (all forms, including actinolite, amosite, anthophyllite, chrysotile, crocidolite, tremolite) Benzene
Benzene, Halogenated derivatives Benzotrichloride
Benzyl chloride Beryllium and Beryllium compounds
Biphenyl-3,3′,4,4′-tetrayltetraamine; Diaminobenzidine Bisphenol A
Bisphenol A diglycidyl ether polymer; [2,2′-bis(2-(2,3-epoxypropoxy)phenyl)-propane] Bisphenol B;  (2,2-Bis(4-hydroxyphenyl)-n-butan)
Bromate Butylbenzyl phthalate and metabolite
Cadmium and cadmium compounds Captan
Carbon monoxide Carbon tetrachloride; CCl4
Catechol Chlorendic acid
Chlorinated Paraffins Chlorine dioxide
Chlorite Chloroalkyl ethers
Chloroethane; ethyl chloride Chloroprene; 2-chlorobuta-1,3-diene
Chromium hexavalent compounds (Cr (VI) Chromium trioxide
Cobalt metal without tungsten carbide (including dust and cobalt compounds) Cresols, Cresol mixtures
Cumene, [ isopropylbenzene] Cyanide and Cyanide compounds
Cyclotetrasiloxane; Octamethylcyclotetrasiloxane (D4) Diazomethane
Dibromoacetic acid Dibutyl phthalate and metabolites
Dichloroacetic acid Dichloroethylenes
Dichloromethane; methylene chloride Dicyclohexyl phthalate and metabolite
Diesel engine exhaust Diethanolamine
Diethyl hexyl phthalate and metabolites Diethyl phthalate and metabolite
Diisobutyl phthalate and metabolite Di-isodecyl phthalate and metabolite
Di-isononyl phthalate and metabolites Dimethyl sulfate
Dimethylcarbamoyl chloride Dinitrotoluenes
Di-n-Octyl Phthalate and metabolites Dodecamethylcyclohexasiloxane (D6)
Emissions, Cokeoven Epichlorohydrin; 1-Chloro-2,3-epoxypropane
Ethyl acrylate Ethylbenzene
Ethylene dichloride; 1,2-Dichloroethane Ethylene Glycol
Ethylene oxide; oxirane Ethylene Thiourea
Ethyleneimine, Aziridine Ethyl-tert-butyl ether
Formaldehyde Fuel oils, high-sulfur; Heavy Fuel oil; (and other residual oils)
Gasoline (automotive, refined, processed, recovered, and other unspecified fractions) Glutaraldehyde
Glycol ethers Glycol ethers acetate
Hexabromocyclododecane (HBCD), and mixed isomers Hexachlorobuta1,3-diene
Hexachloroethane Hexamethylene-1,6-diisocyanate
Hexamethylphosphoramide HMX
Hydrazine, Hydrazine compounds and salts Hydrogen sulfide
Jet Fuels, JP-4, JP-5, JP-7 and JP-8 Lead and Lead Compounds
Maleic anhydride Manganese and manganese compounds
Mercury and mercury compounds Methanol
Methyl chloride Methyl isobutyl ketone, Isopropyl acetone; (MIBK)
Methyl isocyanate Methylene diphenyl diisocyanates
Methylhydrazine and its salts Methylnaphthalene; 2-Methylnaphthalene
Mineral Oils: Untreated and Mildly Treated N,N-dimethylformamide; dimethyl formamide
N,N-Dimethylhydrazine Naphthalene
n-Hexane Nickel and Nickel Compounds; Nickel refinery dust from the pyrometallurgical process
Nickel oxides Nickel, metallic and alloys
Nitrate+Nitrite Nitrobenzene
Nitrosamines Nonylphenol, nonylphenol ethoxylates (NP/NPEs) (and related substances)
Parabens Pentabromophenol
Perfluorochemicals Petroleum; Crude oil
Phthalic anhydride Polybrominated diphenyl ethers (PBDEs) congeners
Polychlorinated biphenyl (PCB) congeners Polychlorinated dibenzo-p-dioxins (PCDDs)
Polychlorinated dibenzo-p-furans (PCDFs) and Furan Compounds Polycyclic Aromatic Hydrocarbons (PAHs)
Propylene oxide Quinoline and its strong acid salts
Silica, Crystalline (Respirable Size) Stoddard solvent; Low boiling point naphtha – unspecified;
Strong Inorganic Acid Mists Containing Sulfuric Acid Styrene and derrivatives
Sulfur dioxide Tetrabromobisphenol A (TBBPA)
Tetrachloroethylene; Perchloroethylene; (PERC) Thallium
Toluene Toluene Diisocyanates
Trichloroethene (TCE) Trihalomethanes
Tris(1,3-dichloro-2-propyl) phosphate (TDCPP) Tris(2,3-dibromopropyl) phosphate
Tris(2-chloroethyl)phosphate (TCEP) Vanadium pentoxide
Vinyl acetate Vinyl Bromide, Bromoethylene
Vinyl chloride; chloroethylene Xylenes; [o-xylene (95-47-6), m-xylene(108-38-3)and p-xylene (106-42-3)]

 

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