On December 6 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice indicating the approval of amendments to Proposition 65’s “clear and reasonable warnings” regulations. OEHHA issued these amendments to clarify and correct certain sections of the significant new regulations going into effect August 30, 2018 that will change how parties in the supply chain for consumer products must warn their customers.

Under the Proposition 65 regulations, a manufacturer, distributor, or retailer of a consumer product sold in California must label the product with a clear and reasonable warning if the product contains one or more chemicals identified by OEHHA as causing cancer, or birth defects or other reproductive harm. Parties in the chain of distribution who fail to provide such warnings may become targets of State enforcement, or private lawsuits for penalties, injunctive relief, and attorneys’ fees. OEHHA has provided “safe harbor” warning language to be used in labeling.

Among other changes in the amendments, the definition of “label” was modified to clarify that a display of written, printed, or graphic material may be “printed” directly on a product or its immediate container or wrapper. Thus, there is no requirement to place a separate label with the warning on the product if the warning is printed on the product or the immediate container or wrapper.

The definition of “labeling” was also modified by adding a “package insert” as an acceptable form of “labeling.” This provision may be useful if it is not practical to apply a label directly to the product or package. The phrase “including tags at the point of sale or display of a product” was removed from the definition because it lacked clarity, because shelf tags are a form of signage and not labeling, and because shelf tags are not a clear and reasonable warning method for most product exposures because they are unlikely to be associated with the products to which they are referring. Sellers who have relied solely on shelf tags will need to evaluate other types of labeling, and all companies in the supply chain for California consumer products may benefit from re-evaluating their warnings in light of the new amendments.

Husch Blackwell’s environmental and consumer product regulatory attorneys can provide advice to our manufacturing and agricultural clients on how to comply with the Proposition 65 warning requirements, and assist in the defense of Proposition 65 claims. Contact Megan Caldwell, Charles Merrill, or Amy Wachs for more information.