WARNING: Prop 65 "Can Expose" Product Manufacturers to Increased Litigation in California
California's Proposition 65 (Prop 65) requires product manufacturers and sellers to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone in California to a chemical listed by the California Office of Environmental Health Hazard Assessment (OEHHA) as known to cause cancer, birth defects or other reproductive harm. A great deal of controversy and confusion has developed over the years as to what constitutes a "clear and reasonable" warning under Prop 65. As such, Prop 65 contains a safe harbor provision wherein a product manufacturer or seller may protect itself by placing warnings specified in the regulations on its products. If the warning comports with the safe harbor provisions, it is deemed "clear and reasonable."
In May 2016, Stinson Leonard Street reported on the history of Prop 65, along with proposed amendments to it under consideration by the OEHHA. See, California's Proposition 65: History and Proposed Amendments in 2016. In support of the proposed amendments to Prop 65, OEHHA claimed that the prior safe harbor warnings lacked the specificity required to ensure that the public received information regarding potential exposures to chemicals known to cause cancer, birth defects or other reproductive harm. Further, the OEHHA claimed that the prior regulations were outdated, given the changes in communication technology and California demographics over the past 25 years. Therefore, the proposed amendments to Prop 65 sought to enhance clarity and public awareness of potential hazards to consumers.
On September 2, 2016, the OEHHA adopted many of the proposed amendments to Prop 65's safe harbor provisions. While the amendments may help clear up some confusion regarding the "clear and reasonable" warning requirements, it is anticipated that the newly adopted changes to Prop 65 may have the effect of increasing litigation, including the notorious "bounty hunter" lawsuits1, against any company that sells products and/or provides services in California.
NEW REQUIREMENTS OF CALIFORNIA'S PROP 65
The new regulations were developed over a 1½ year-long process which included multiple proposed amendments to Prop 65, public hearings, requests for written comments and modifications to the proposed amendments by the OEHHA. Despite objections and vigorous public comment, many of the proposed amendments to Prop 65 were adopted. The most noteworthy changes in the new regulations include:
Warnings on nonfood products must contain a symbol with a black exclamation point in a yellow equilateral triangle with a black outline:
- The warning should also contain the word "WARNING" in all capital letters and bold type;
- Warnings must state that the product "can expose" a user to chemicals known to the state of California to cause cancer, birth defects and/or other reproductive harm. The prior version of Prop 65 only required a statement that the product "contained" a chemical.
- Warnings must identify one or more chemicals for each potential health effect (i.e. cancer, birth defects, reproductive harm).
- Warnings must include a link to a new Prop 65 website that will be operated by the OEHHA.
- Warnings on product labels can be shortened to only include the symbol and warning identification discussed above, a statement that the product can expose the user to one or more chemicals that can cause cancer, birth defects and/or reproductive harm (but it does not need to list the specific chemicals), and a link to the new OEHHA website.
- Warnings must be presented in additional languages under certain circumstances.
- Product-specific warnings may be provided via electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the product.
- For internet sales, warnings must be provided on the product display page, or a clearly marked hyperlink using the warning identification discussed above.
THE BURDEN ON PRODUCT MANUFACTURERS OR SUPPLIERS
The new Prop 65 regulations clearly place the onus of providing warnings on product manufacturers or suppliers as opposed to product retail sellers. Although a retail seller may still be found liable under certain circumstances for inadequate warnings accompanying a product, the new regulations require product manufacturers or suppliers to either label their products with a proper warning or provide retailers the required notice and warning materials. As for the latter option, manufacturers and suppliers must follow strict notice requirements under the new regulations. As such, the amended Prop 65 appears to place manufacturers and suppliers in the crosshairs of enforcement suits instead of retail sellers.
PRIOR COURT-ORDERED SETTLEMENTS/CONSENT JUDGMENTS
The newly adopted Prop 65 regulations allow for manufacturers and suppliers subject to Court-ordered settlements or consent judgments that establish a warning method or content as "clear and reasonable" to continue to follow the methods and content set forth by settlement or judgment. Further, manufacturers and suppliers are still allowed under the new regulations to use other warning language that can be defended as "clear and reasonable."
The amended Prop 65 regulations will not take effect until August 30, 2018. Until that date, companies may comply with either the existing or new regulations under Prop 65. Further, products manufactured before August 2018 may continue to use the pre-amendment safe harbor warning language. However, due to the likelihood of increased "bounty-hunter" litigation arising from these changes to Prop 65, it is prudent for all companies that manufacture or sell products in California to evaluate their warning obligations prior to the implementation of the new regulations.
For more information about Proposition 65 and its new requirements, please contact Benjamin Woodard, Michelle Corrigan or the Stinson Leonard Street attorney with whom you regularly work. For additional literature and insights from the Stinson Leonard Street Children's Products Group, please visit our webpage and subscribe to receive future content.
1. As an enforcement mechanism, Prop 65 contains a “bounty hunter” provision whereby private parties, without alleging any exposure to a listed chemical, may sue businesses to enforce Prop 65’s warning provisions. If successful, the plaintiff may recover 25% of any civil penalties imposed on the company, along with attorneys’ fees and costs.