BISG FAQ: Updates to California's Prop 65
Sunday, September 9, 2018
Posted by: Brian O'Leary
The State of California recently updated regulations for Proposition 65. BISG's legal counsel, Dentons US, follows this law as part of their practice. We asked them to provide a current perspective on the law. This document provides general guidance, and should not be considered legal advice.
Proposition 65 FAQs
What is Proposition 65?
Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986 with the intention of protecting California citizens and the State’s drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm. The law requires the governor to publish, at least annually, a list of chemicals known to the state to cause cancer or reproductive toxicity. More than 800 chemicals are now on the list. The current Proposition 65 List can be found here [PDF].
Proposition 65 is a “right-to-know” law, meaning every business with more than 10 employees that is in the chain of commerce must provide a “clear and reasonable” warning to California’s consumers before exposing them to chemicals known to the state of California to cause cancer or reproductive harm, unless the business can demonstrate that the exposure is below certain thresholds. The state government agency that implements Proposition 65, the Office of Environmental Health Hazard Assessment (OEHHA), has issued regulations providing “safe harbor” warnings. If a business complies with these safe harbor regulations, its warnings are deemed “clear and reasonable” as a matter of law. The Safe Harbor Regulations can be found here [PDF].
How does Proposition 65 affect the book industry (publishers, wholesalers, retailers)?
Generally, publishers, wholesalers and retailers of consumer products in the book industry that are sold into California must comply with the warning requirements of Proposition 65 for any products requiring such warnings.
Whether a book industry product sold in California requires a Proposition 65 warning depends on whether those products contain a listed Proposition 65 chemical that would cause a risk of exposure to such chemicals to a consumer. Manufacturers of the raw ingredients, as well as manufacturers of finished book and paper products are in the best position to know the chemical composition of these items, and whether the products contain listed chemicals in any amount, including amounts that may trigger a warning.
On a practical level, how can publishers, wholesalers and retailers protect themselves?
As of August 30, 2018, manufacturers, producers, packagers, importers, suppliers or distributors have the primary responsibility to provide Proposition 65-compliant warnings on consumer products (i.e., books); the primary responsibility is not on the retailer (presumably unless it is the importer). If a Proposition 65 listed chemical is present above the threshold amount, manufacturers, producers, packagers, importers, suppliers and distributors (collectively, “suppliers”), unless they proactively label their products, must document that they have notified retailers of the need to provide warnings and provided all necessary warning materials. HSC § 25600.2.
Retailers are only responsible for providing warnings if they have been notified but have failed to provide the warnings, if they are selling “house brands,” or in other limited circumstances. HSC § 25600.2.
If the supplier is notifying retailers that a warning is required, it must follow these rules to be within the safe harbor:
- Supply written notice to a retailer’s authorized agent stating that a warning is required;
- Include the exact name or description of the product, or specific identifying information (e.g., UPC/SKU);
- For “brick and mortar” retailers – send warning materials;
- For online sales – provide warning language;
- Confirm retailer’s receipt of notice.
Online retailers and publishers who sell products into California via the internet are now required to comply with specific internet warning requirements if a Prop. 65 chemical above the threshold amount is involved: See https://oehha.ca.gov/media/downloads/crnr/side-sidearticle6.pdf at § 25602(b) for details.
For internet purchases, a warning that complies with the content requirements of Section 25603(a) must also be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. For purposes of this subarticle, a warning is not prominently displayed if the purchaser must search for it in the general content of the website. HSC § 25602(b). Emphasis added.
Publishers and retailers selling products into California that require warnings via catalog will find specific requirements at § 25602(c).
While “retailers” are defined in the Proposition 65 regulations, manufacturers, producers, packagers, suppliers and distributors are not. Publishers and wholesalers are likely to be considered in one of such categories, subject to further regulatory or court clarification. Thus, it is probably advisable for publishers to get confirmation from their printers and other suppliers that no Proposition 65 listed chemical is present in the product above the threshold amount. Wholesalers should obtain similar confirmation from their publishers.