Prop 65 “Clear and Reasonable” Warning Regulations Coming in August 2018

An overhaul of the “clear and reasonable” warning regulations for Proposition 65 go into effect on August 30, 2018 for all products manufactured on or after that date. To comply with the new requirements, retailers will need to ensure that product warnings adhere to a format that includes tailored language identifying at least one chemical from the official Proposition 65 list that triggered the warning. The new warning regulations will impact many businesses that were previously able to use generic warning labels on products to avoid costly testing and to fend off Proposition 65 plaintiffs.

Changes in Warning Content

The new warnings will need to include four elements:

• A triangular yellow and black warning symbol, which may be printed in black and white as long as it is not printed against a yellow background
• The word “WARNING” in bold all capital letters
• New tailored warning language that changes depending on whether the chemical is listed for cancer or for reproductive toxicity, or both
• The address for the California Proposition 65 website

Sample Warnings Under the New Regulations

Chemical listed for Cancer Only

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.

Chemical listed for Reproductive Toxicity Only

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.

Single Chemical Listed for Both Cancer and Reproductive Toxicity

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 and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.

One Chemical Listed for Reproductive Toxicity Only and One Chemical Listed for Cancer Only

WARNING: This product can expose you to chemicals including [name of chemical], which is known to the State of California to cause cancer, and [name of chemical], which is known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.

The new regulations permit companies to provide on-product warnings using the warning language above, or through the following shorter alternative warnings that do not include chemical names:

WARNING: Cancer - www.P65Warnings.ca.gov

WARNING: Reproductive Harm - www.P65Warnings.ca.gov

WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov

Warnings Must Be Prominently Displayed

Retailers must also ensure that warnings are “prominently displayed,” meaning the warning must be as visible as other material on the label, no smaller than the largest type size used for product information, and under no circumstances smaller than 6-point type size. For Internet purchases, the disclosure can be provided by including either the same warning on the product or a clearly marked hyperlink using the word “WARNING,” or by prominently displaying the warning to the consumer prior to purchase.

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Our Proposition 65 Experience

• Counseled hundreds of clients on compliance issues
• Defended and resolved many private enforcement claims against manufacturers, online marketers, and retailers in industries ranging from aerospace and technology to consumer products and fashion items
• Successfully negotiated settlements with private parties, environmental advocacy groups, and California’s Attorney General
• Developed approaches to use federal preemption to limit scope of Proposition 65 requirements

About Steptoe

Steptoe’s retail and environmental teams are international in scope, which makes us ideally qualified to counsel clients on the potential interaction of Proposition 65 with various state, federal, and international environmental regulatory schemes. Steptoe represents many of the largest retailers in the world with a wide range of legal matters. We regularly counsel retailers about e-commerce, information security, data protection, privacy law, and federal and state regulatory compliance issues. Many of our lawyers work with retail clients full-time, and we have a deep understanding of the legal and business concerns impacting retailers. Steptoe often works with clients in supply chain relationships to strategically address both regulatory compliance and litigation. Additionally, we work with our clients’ management, marketing teams, finance teams, and IT departments to develop tailored, creative and cost-effective solutions that do not interfere with business goals.