California Adopts Clarifying Amendments to Proposition 65 Warning Requirements

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December 12, 2017 - Kirsten Wallerstedt

On 6 December 2017, California's Office of Health Hazard Assessment (OEHHA) published amendments to Article 6 on the provision of “clear and reasonable” warnings for purposes of Proposition 65. The amendments, which are now encoded into the Proposition 65 regulations, have the purpose of clarifying and correcting some of the language which will become operative on 30 August 2018.

3E Review

The amendments include:

  • Updating the definition of "label" to clarify that it may be printed on, as well as affixed to, a product or its immediate container or wrapper;
  • Refining the definition of "labeling" to clarify that it may include a package insert;
  • Removing "tags at the point of sale or display of a product" from the definition of "labeling." OEHHA clarifies in the Initial Statement of Reasons that such tags are a form a signage, rather than labeling;
  • Changing references from "on-product" warnings to be referenced instead as "short-form" warnings, since the former term was confusing to some people;
  • Including alcoholic beverages in Section 25607.6 on content for "Food and Beverage Exposure Warnings for Restaurants" (the language for this section previously excluded alcoholic beverages);
  • Clarifying the exclusion of pickup trucks and van engines from the "Diesel Engine Exposure Warnings" and clarifies that they are included in the "Vehicle Exposure Warnings" category;
  • Clarifying that a "monitored electronic mailbox or post office box" qualifies as an entity which may be designated as the "authorized agent";
  • Among other more minor clarifying amendments.

3E Analysis

On 30 August 2016, the Proposition 65 language was significantly amended. The changes particularly affect the content of Proposition 65 warnings. The amended regulation will be operative on 30 August 2018.  In the interim, businesses may comply with the regulation which was in effect on 30 August 2016, or the provisions of the new regulation. The deadline for compliance is 30 August 2018.

These December 2017 amendments clarify the language in Article 6 of the Proposition 65 regulations which becomes operative on 30 August 2018.

Businesses affected by Proposition 65 are not required to comply with the warning methods and contents specified in Subarticle 2 of Article 6, but may voluntarily do so in order to receive the safe harbor benefit of the regulations.