Proposition 65 has been a requirement for employers and retailers for many years. In 2018, the signs and notifications were changed to include language that notified the public of chemical hazards they had the potential to get exposed to. In the recent few days, we have received a few questions regarding the signs, the size requirements, and the posting requirements.  We must note that there are no new regulations here. This newsletter is merely a review of the changes that took effect in 2018. 

California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law had certain nuances not normally seen in toxic chemical regulations. The specific ones that catch our attention are as follows:

• No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
• Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
• Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!

What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?

Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply stated that a chemical is present that causes cancer or reproductive harm, but they did not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, which take effect in August 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:

• The name of at least one listed chemical that prompted the warning
• The Internet address for OEHHA’s new Proposition 65 warnings website, http://www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
• A triangular yellow warning symbol “ ” on most warnings

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

• Adds new “tailored” warnings that provide more specific information for certain kinds of exposures, products, and places.
• Provides information for website warnings for products purchased over the Internet
• Provides information for warnings in languages other than English in some cases
• Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings.

What is the Purpose of the New Proposition 65 Warnings (effective 2018) Website?

People who read Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures. The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, anything from furniture products to enclosed parking facilities. It also answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.

Will Businesses Be Required to Provide the New Warnings?

Using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.

What Circumstances Will Require Warnings in Languages Other Than English?

When a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English. Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.

For Internet purchases, warnings can be provided by including a clearly marked hyperlink using the word WARNING on the product display page.

What Are the Warning Responsibilities for Manufacturers and Retailers?

The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning provide warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Proposition 65 chemical.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer. We attach information related to proposition 65 signs as they may apply to your facility. If you have any questions, please do not hesitate to contact us.

1. Label: Environmental Exposure Where to Post: All Public Entrances to Showroom. Size/Font: 72 font Language Warning: English and in any other language used on other signage at the facility. 2. Label: Food Facilities Where to Post: Waiting areas or any other areas that sells/serves food Size/Font: 28 font 8.5”x11” Language Warning: English and in any other language used on other signage or menus provided at the facility. 3. Label: Smoking Area(s) Where to Post: Smoking area(s) Size/Font: 22 font 8.5”x11” Language Warning: English and in any other language used on other signage in the affected area. 4. Label: Vehicle Exposure Warnings Where to Post: Driver’s side window of all new and used passenger vehicles for sale Size/Font: No font size required but 12 font is recommended Language Warning: No foreign language requirement, but include warning labels on the vehicle in other languages if the vehicle has sale signs in other languages. 5. Label: Vehicle Repair Facilities Where to Post: All public entrances to service department Size/Font: 32 font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility.

6. Label: Service Stations & Gas Pumps Where to Post: Each gas pump Size/Font: 22 font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility. 7. Label: Occupational Exposure Where to Post: Employee break area(s) Size/Font: No font size required Language Warning: English and in any other language used on other signage at the break area. 8. Label: Enclosed Parking Facilities Where to Post: All entrances to parking structures that have an enclosed ceiling Size/Font: 72 font Language Warning: English and if other permanent entrance signage is provided in any other language at the facility. 9.Label: Lead and Lead Compounds Where to Post: Parts Counter at front and back. Size/Font: 32 font Language Warning: English and in any other language used on other signage at the facility.