November 23, 2016 State of California Adopts New Safe Harbor Warning Regulations
With the rising public concerns regarding chemical exposure, transparent product labelling is an increasingly invested legislative topic in many industries. In the state of California, businesses with more than 10 employees have been required to provide warnings for products containing chemicals at levels known to cause cancer, birth defects or other reproductive harm since November 1986 when Proposition 65 came into effect. The OEHHA (Office of Environmental Health Hazard Assessment) is the lead agency for implementation of Proposition 65 and modification of the regulations.
On August 30, 2016 the adoption of amendments to Article 6, Clear and Reasonable Warnings, of the California Code of Regulations was approved. The New Proposition 65 Regulations will come into effect as of August 30, 2018. Products manufactured before this date will be permitted unlimited sell through, however businesses are being urged to start complying with the New Proposition 65 Regulations to allow for a reasonable transition period. During this interim, the New Proposition 65 Regulations are still open to reform from industry.
The New Proposition 65 Regulations mandate a number of changes, including clarifying responsibilities between business types; with a decrease in retailer responsibility and an increase in manufacturer responsibility. Changes to product warnings include the use of a warning pictogram, addition of at least one chemical for which the warning is provided and inclusion of an information URL. In addition, where consumer information is provided in a language other than English, the warning must also be provided in that language. Specific requirements have also been implemented that would allow the use of truncated versions of the warnings. Businesses do have the option to opt out of using alternative warnings, provided they are prepared to defend these alternate warnings as “clear and reasonable” under the Act. Supplemental information, within specific parameters, is permitted to contextualize the warnings. A principal change in the New Proposition 65 Regulations is the requirement to provide warnings before or at the point of purchase, as opposed to before product use. A change expected to affect the way online sales are conducted.
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