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Warning: Only 6 Months Left Before New Prop 65 Regulations Become Operative on August 30, 2018

As of today’s date, businesses have only 6 months to comply with the newly-amended Clear and Reasonable Warnings regulations in California’s Proposition 65 (Prop 65), which take effect on August 30, 2018. We posted a 1-year reminder here, which discusses the history of Prop 65, the new requirements in the regulations, and the potential increase in enforcement litigation stemming from alleged noncompliance.

Substantively, the Prop 65 amendments repeal all provisions of the Article 6 regulations, except certain provisions added via an emergency rulemaking in April 2016 related to warnings for exposures to bisphenol A in canned foods and beverages. The amended Clear and Reasonable Warnings regulations in Article 6 include new requirements for:

  • Specific content language of warnings;
  • How those warnings are transmitted to consumers, including on product labeling, warnings on signs and shelf tags (where the warning is not affixed to each product);
  • Products made available via the Internet; and
  • Notification requirements from manufacturers who ship products in bulk to retailers.

Any time from August 30, 2016 until August 30, 2018, businesses may comply with the prior regulations currently in effect, or they may comply with the newly amended regulations. Given the impending August 30, 2018 deadline, many businesses have already started to prepare and shift their operations to comply with the new Prop 65 requirements. These time-consuming preparations include designing product packaging and shelf tags with the new safe harbor warnings on them; notifying retailers of the warnings and requirement to display such warnings as provided by the manufacturer, or re-testing products to confirm whether they contain one of the 900 listed chemicals regulated under Prop 65.

It is imperative that businesses understand the risks and complexities associated with the requirements in amended Prop 65 Clear and Reasonable Warnings regulations and comply before August 30, 2018. Prop 65 allows citizens to seek penalties and recover their attorney’s fees for a business’s failure to comply with Prop 65. Accordingly, there are an increasing number of plaintiff’s lawyers in California focused solely on Prop 65 enforcement litigation who are ready to pursue more enforcement actions when the new amendments become effective.

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About this Author

Kendra Sherman, Squire Patton Law Firm, Environmental Compliance Attorney
Partner

Kendra’s practice encompasses all areas of environmental law. She represents a broad spectrum of clients, including metals, mining, iron and steel, and chemical companies, waste management and environmental services companies (including solid waste landfills and construction and demolition debris facilities), and public law clients, including cities and villages. Kendra defends clients in federal and state enforcement actions related to air, water quality, wetlands and solid and hazardous waste matters, and represents clients in appeals and challenges related to Clean...

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Danelle Gagliardi Environmental Lawyer Squire Patton Boggs
Associate

Danelle Gagliardi represents a wide variety of clients in complex environmental transactions, litigation and regulatory compliance, including those in the metals, mining, iron and steel, oil and chemical industries, as well as real estate developers and shipping and logistics companies. She has a strong background in the Clean Air Act (CAA), Clean Water Act (CWA), Toxics Substances Control Act (TSCA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and California’s Proposition 65 (Prop 65).

Danelle has a multistate, global practice involving all aspects of environmental law. She has represented clients in challenges related to state and federal enforcement actions and rulemakings, negotiated consent decrees and defended clients in cost recovery or contribution claims under CERCLA in multiple jurisdictions. She has also advised both US and international clients on diligence aspects of complex transactions in the areas of environmental engineering/infrastructure, chemicals, nuclear power and renewable energy.

Danelle regularly counsels both US and international clients in a variety of industries on compliance and enforcement matters related to Proposition 65, California’s clear and reasonable warning regulations, and she has experience guiding clients in multiple states through the process of obtaining environmental covenants under state voluntary action programs for brownfield redevelopment.

Prior to joining the firm, Danelle interned for Judge Jeffrey S. Sutton on the US Court of Appeals for the Sixth Circuit. She is heavily involved in pro bono efforts through Columbus Legal Aid’s Wills Clinic and Operation Legal Help Ohio, which assists low-income veterans for their legal needs. She serves on the Board of the Association of Women in the Metal Industries – Columbus Chapter as the Finance/Marketing Director and has a Master of Laws from the University of Queensland, T.C. Bierne School of Law in Australia.

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