If you find yourself wondering why nearly every building in California has a “Warning: This area contains a chemical known to the State of California to cause cancer” sign, it’s due to the requirements of California’s Safe Drinking Water and Toxic Environment Act of 1986, better known as Proposition 65 or Prop 65. On September 2nd, 2016, the California’s Office of Environmental Health Hazard Assessment (OEHHA) issued final amendments to the Proposition 65 regulation (California Health and Safety Code §25600 – 25607.9), which overhauled the requirements for Clear and Reasonable Warnings. Due to the recent amendments, these over-familiar signs will all need to be updated or replaced over the next two years. Product manufacturers, retailers, business owners, and property managers all need to react to the new requirements before the effective date of August 30th, 2018 in order to avoid potential regulatory violations and lawsuits.
In 1986, California voters approved Proposition 65 in response to growing concern about exposure to toxic chemicals. Proposition 65 requires the state to publish and maintain a list of chemicals known to cause cancer or reproductive harm. In addition, Prop 65 requires businesses to notify the public about potential exposure to listed chemicals through products they purchase, at their homes or workplaces, or through environmental release. This notification process is codified in Article 6 of Title 27 of the California Code of Regulations, and is titled “Clear and Reasonable Warnings.”
The New Standard for Clear and Reasonable Warnings
Under the old regulation, Proposition 65 warnings were required to state that a product, area, or business may expose Californians to chemicals known to the state to cause cancer or reproductive harm. Under the amended regulation, the warning must include the name the chemicals that the public may be exposed to. This requires more extensive knowledge and testing of products or exposure areas, and additional attention to detail when preparing and issuing signs and notices. In addition, the address for a Prop 65 informational website must be included in the warning. A comparison of the old versus new warnings is provided in the table below:
The new regulations have separate warning requirements for consumer products, food products, and environmental exposure.
Warnings must be posted for consumer products that contain significant amounts of chemicals listed as known to the State of California to cause cancer or reproductive harm. These warnings must be posted on the product label itself, on a shelf or display near the product, or provided through an electronic device. The warnings must be provided to the purchaser prior to or during the purchase, and without requiring the purchaser to seek out the warning. The warning must be the same size or larger font compared to other consumer information, with a minimum of 6-point font. If the product contains consumer information in a language other than English, the warning must also be included in those other languages. The warning for a consumer product must include a bold black-outlined, yellow equilateral triangle with an exclamation point in the center (“warning symbol”) and followed by a sentence of the following structure:
WARNING: This product can expose you to chemicals including [name of one or more listed chemicals], which is [are] known to the State of California to cause cancer, and [name of one or more 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.
Section 25603(b) allows for abbreviated on-product warnings where disclosure of the listed chemicals contained within the product is not required. The on-product warning must include the warning symbol described above plus one of the following statements:
Warning: Cancer - www.P65Warnings.ca.gov
Warning: Reproductive Harm - www.P65Warnings.ca.gov
Warning: Cancer and Reproductive Harm - www.P65Warnings.ca.gov
The amended regulation allows the manufacture, producer, distributor, etc. to comply with the warning requirements by sending the authorized agent for retail seller in California a written notice that provides all the information required for the product warning. Once the manufacturer obtains written or electronic proof of receipt of this notice, it is the retailer’s responsibility to properly post the warning.
Food products have slightly different requirements compared to other consumer products. Section 25603 requires the warning for food to enclosed in a box and set off from other surrounding information. The warning language for food products is as follows:
WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.
The amendments allow the use of abbreviated warnings for food products. Similarly to other consumer products, if a food sign, label or shelf tag includes consumer information in a language other than English, the warning included on the sign, label, or tag must be provided in the other languages as well.
The warning for alcoholic beverages remains unchanged, except for the addition of the Prop 65 warning website address.
WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information, go to www.P65Warnings.ca.gov.
The same language requirements that apply to consumer products apply to alcoholic beverages. There are a number of warning transmission options including, posting an 81/2 by 11 inch sign at eye level in a location that is easily seen when customers enter a facility or restaurant, a 5 by 5 inch or larger sign at each point of display, or a warning on the menu that lists alcoholic beverages.
Areas with significant amounts of listed chemicals that may pose an exposure risk to any person who enters are required to post a warning. In addition, industrial facilities that have the potential to expose the public to listed chemicals through the release to soil, water, or air must provide warnings to the affected area. Similarly to consumer product warnings, environmental exposure warnings must include the warning symbol (yellow triangle with exclamation point), and must include all languages used within the area. On top of that, environmental exposure warnings must include the source of exposure. The text of environmental exposure warnings must adhere to the following format:
WARNING: Entering this area can expose you to chemicals known to the State of California to cause cancer, including [name of one or more chemicals], from [name of one or more sources of exposure]. For more information go to www.P65Warnings.ca.gov.
Environmental exposure warnings must be transmitted by one of the following three methods:
Why Should I Care?
One of the goals of the recent amendments is to reduce lawsuits related to Proposition 65. However, the final rule may have the opposite effect due to the complexity of the new warning requirements. Manufacturers and distributors of consumer products need to start redesigning their labels on products sold in California, and retailers need to start working with their distributors to acquire adequate information and signage for proper warning display. Building owners and managers will be required to determine exactly which listed chemicals are present in their living and working spaces and develop new warning signs that include the specific chemicals. Managers of industrial facilities required to send out quarterly notices will need to update their public notice content and delivery method to meet the new requirements. Additional analysis or modeling may be necessary to develop the map that is required in the content of the notice.
In general, the new amendments have made the warning requirements more specific, which may provide the public with more information. However, they have increased the burden on entities required to provide the warnings, and opened the door for a new round of lawsuits once the requirements become effective in August 2018.
Need more information? Contact Alta Environmental at 888-608-3010.