• As previously reported on this blog, in 2016 California passed new regulations redefining what makes a warning “clear and reasonable” under Proposition 65; those regulations become effective today.  Proposition 65 is a right-to-know law that requires manufacturers to provide a clear and reasonable warning to consumers before exposing them to over 950 listed carcinogens and reproductive toxicants.

• Importantly, the new regulations do not impact the scope of the duty to warn.  If a manufacturer had no duty to warn before today, it would not be under a burden to warn in light of the new regulations.  Rather, the new regulations change the content and distribution of warnings, when required.  Some new features include:

  • Requiring a warning sign to precede Proposition 65 warnings (except for warnings on foods);

  • Changing the wording of the warning to state “This product can expose you to” rather than “This product contains;”

  • Requiring the disclosure of the identity of at least one chemical per toxicity endpoint in the warning;

  • Including a link to the “Lead Agency Website” (www.P65Warnings.ca.gov) that offers additional information on Proposition 65 and listed chemicals;

  • Providing the option of a short form warning (subject to minimum type size requirements) when providing the warning on the product or its immediate container;

  • Requiring warnings for internet and catalog sales;

  • Requiring warnings in foreign languages if other “consumer information” is provided in foreign languages.

• The new warnings also include specific warning language for specific types of consumer products and exposures, including for foods.  The new standard warning for food (which would need to appear in a bordered box) for a food containing at least one listed carcinogen and one listed reproductive toxicant would state:

Consuming 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 [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/food.

• California issued guidance indicating that products manufactured before August 30, 2018 can continue to bear warnings using the old format and continue to enjoy safe harbor protection; however, products requiring a warning that are manufactured on or after today must bear a warning using the new format.