In our last post, we gave a summary of some of the changes to OEHHA's regulations setting out requirements for Proposition 65 warnings that will be deemed "clear and reasonable." Today, we look at the new provisions which generally apply to warnings to consumers and others about exposures to listed chemicals from products. We'll look at the newly required content, then at the required means of transmission. Note that these regulations take effect on August 30, 2018, but will require a great deal of planning:
Safe-Harbor Warnings for Consumer Products
The Required Content
The warning requirements for consumer products generally include an icon/graphic, specific language and a website url:
For exposures to a single carcinogen, reproductive toxicant or a single chemical listed as both:
WARNING: This product can expose you to [name of chemical], a chemical known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/product.
WARNING: This product can expose you to [name of chemical], a chemical known to the State of California to cause birth defects or other reproductive harm. For more information go to www. P65Warnings.ca.gov/product.
WARNING: This product can expose you to [name of chemical], a chemical known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.65Warnings.ca.gov/product.
For exposures to multiple (or potentially multiple) chemicals:
WARNING: This product can expose you to chemicals including [name of one or more chemical or chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/product.
WARNING: This product can expose you to chemicals including [name of one or more chemical or 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/product.
WARNING: This product can expose you to chemicals including [name of one or more chemical or chemicals], which is [are] known to the State of California to cause cancer and [name of one or more chemical or 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/product.
WARNING: This product can expose you to chemicals including [name of one or more chemical or chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. . For more information go to www.P65Warnings.ca.gov/product.
Those are just the start. More after the jump.
Despite the bracketed language about “one or more chemical or chemicals,” our reading of the regulations is that when there are multiple chemicals and a single end-point, the warning only has to list one of the chemicals. If there are two or more chemicals with different end-points (i.e., cancer and birth defects), at least one chemical has to be identified for each end point.
The new regulations also contain “truncated” warnings for consumer products. While these were designed for product / packaging so small there is no room for the full warning, the regulations allow their use on any products. The truncated warnings are these:
WARNING: Cancer -- www.P65Warnings.ca.gov/product
WARNING: Reproductive Harm -- www.P65Warnings.ca.gov/product
WARNING: Cancer and Reproductive Harm-- www.P65Warnings.ca.gov/product
These warnings need not identify a particular chemical, but must be placed on the product itself.
In all instances where the regulations require the icon, if product labels are printed without color, the exclamation point in the triangle can be printed in black and white.
Warning Location
Consumer product warnings must be “prominently displayed . . . and must be displayed with such conspicuousness as compared with other words, statements, designs or devices . . . as to render the warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use.” Warnings can be provided in the following ways:
- A product-specific warning on a sign or shelf-tag at each point of display of the product;
- A product-specific warning provided “via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase . . . without requiring the purchaser to seek out the warning;
- A label;
- An on-product truncated warning, in a type size “no smaller than the largest type size used for other consumer information on the product” and not smaller than 6-point type.
For the first time, the regulation seems to be requiring specific types of warnings, rather than creating safe harbors. For Internet purchases, the new regulations require that “a warning . . . must be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display site, “or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase.” And the regulations provide that a warning is not “prominently displayed” if the purchaser has to search for it. For catalog sales, the warning must be provided in a manner that clearly associates the warning with the product. For either Internet sales warnings or catalog sales warnings, if the company uses one of the truncated warnings, it can use the truncated warning on the web site or in the catalog.
We'll have another post in the next few days, talking about some new warning regulations for specific products, including food, alcoholic beverages, motor vehicles, furniture and other products.
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