1. (Prepared for California Grocers Association)
Proposition 65 Consumer Product Exposure Warnings Under The New Clear And Reasonable Warning Regulation, Article 6, 27 Cal. Code Regs. § 25600, et seq.
(Prepared for California Grocers Association)
November 16, 2016
Renee D. Wasserman
Alecia E Cotton Rogers Joseph O’Donnell

2. The New Warning Regulations – Main Topics:
New Safe Harbor Warning
Division of Manufacturer and Retailer Responsibility for Warnings
Private Label Products
Vendor/Retailer Contractual Agreement
Chemical Designation on Warning
Internet Sales Warnings
Specific On-Product Food Warnings
OEHHA Website

3. Implementing Regulations
The new amendments to Article 6 “Clear and Reasonable” Warnings can be found at Cal. Code Regs §§
Attached verbatim as Appendix to Toolkit.

4. Adoption & Implementation – When to Use New Warning
The new Proposition 65 warning provisions were adopted on August 30, 2016.
The new warning regulation will be effective on August 30, 2018.
A new version of the warning is required.
Businesses may conform to the new regulations between August 30, 2016 and August 30, 2018.
The current warnings or new warnings are compliant prior to August 30, 2018.

5. Current Warnings for Consumer Products
Proposition 65’s current warning regulations allow for “safe harbor” compliance through a generic, one-sentence, simple statement appearing in English.
Combination - WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

6. Example of New Long-Form Safe Harbor Warning
Combination
WARNING: 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 and birth defects or other reproductive harm. For more information go to

7. Methods & Placement of Warning
Ways a product-specific safe harbor warning can be provided by:
Posted Sign
Shelf Tag
Shelf Sign
On-Product Label
Any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning See 27 Cal. Code Regs § 25602(a)(1-4).

8. Warning for Product Manufactured Prior to Effective Date
A warning for a consumer product manufactured prior to August 30, 2018 but sold thereafter is deemed to contain a “clear and reasonable” warning if it complies with the prior version of warning regulation.

9. Modifications to Definitions
Modifications- The new amendments modify some of the definitions provided in the regulatory provisions by:
-Adding a definition for “consumer product,” which is defined as “any article, or component part thereof, including, food, that is produced, distributed, or sold for the personal use, consumption or enjoyment of a consumer.” § (d).
-Modifying the definition of “label,” to include printed or graphic material affixed to a product’s wrapper § (i).

10. Modifications to Definitions (cont’d)
-Modifying the definition of “labeling” to include “tags at the point of sale or display of a product.” § (j). -Adding a definition for the term “retail seller,” which is defined as “a person or business that sells or otherwise provides consumer products, directly to consumers by any means, including via the Internet.” § (l). -Modifying the definition of “sign” to include electronically provided materials, and shelf signs that are conspicuously posted, and clearly visible. § (m).

11. Manufacturer Responsibility to Provide Warning
Manufacturers have primary responsibility for warning.
A manufacturer of a product is required to do the following, in order to comply with the regulation and meet its warning obligation:
-Affix a label to the product bearing a compliant warning, or;

12. Manufacturer Responsibility to Provide Warning (cont’d)
-Provide written notice directly to the authorized agent for the retail seller which states that the product may result in an exposure to one or more listed chemicals.
The written notice must include the exact name or description of the product, or specific identifying information, such as the UPC;
Must include all necessary warning materials such as labels, shelf signs or tags, and compliant warning language for products sold online;
Must obtain confirmation electronically or in writing of receipt of the notice by the retail seller.

13. Manufacturer Responsibility to Provide Warning (cont’d)
Notice to retailer:
Notice must be renewed, and receipt of the renewed notice must be confirmed electronically or in writing by the retail seller’s authorized agent within 6 (six) months during the first year after the effective date of the new warning regulation and then annually thereafter.
Additional notice is required within 90 (ninety) days when a different or additional chemical name or endpoint is included in the warning.
Note: The retail seller is responsible for the placement and maintenance of warning materials, including warnings for products sold over the internet, that the retail seller receives from the manufacturer.

14. Retailer Responsibility for Warning
A retailer is responsible for providing a warning ONLY when one or more of the following circumstances exist:
-Product is sold under a brand or trademark that is owned or licensed by the retailer (private label products);
-The retailer has introduced a listed chemical into the product;
-The retailer has covered, obscured or altered a warning label provided by upstream supplier;

15. Retailer Responsibility for Warning (cont’d)
-The retailer has received a notice and warning materials and has sold the product without conspicuously posting or displaying the warning;
-The retailer has “actual knowledge” of the potential consumer product exposure and (1) there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who (2) is a “person” in the course of doing business under the Act, and has designated an agent for service of process in California, or has a place of business in California.

16. Retailer Responsibility for Warning (cont’d)
“Actual knowledge” means specific knowledge of the consumer product exposure received by the retail seller from any reliable source. If the source of this knowledge is a 60-Day Notice, the retailer shall not be deemed to have actual knowledge of any consumer product exposure that is alleged in the notice until 5 (five) business days after the retailer receives a notice that provides a description of the product with sufficient specificity for the retailer to readily identify the product.

17. Manufacturer Information to be Supplied by Retailer upon Request of Enforcer
Upon receipt of a written request, and to the extent the information is reasonably available to the retailer, a retailer “of a product that may cause a consumer product exposure shall promptly provide the name and contact information for the manufacturer, producer, packager, importer, supplier, and distributor of the product to the following persons”:
-The lead agency (OEHHA)
-The Attorney General, any district attorney, or any city attorney or city prosecutor with authority to bring an action under the Act
-Any person who has served a 60-day notice alleging that the consumer product causes an exposure that requires a warning
“A person or entity making a written request must provide a description of the product with sufficient specificity for the retailer to readily identify the product ….” 27 Cal. Code Regs § (h).

18. Ability to Shift Warning Responsibility by Written Contract
The new warning regulation expressly allows the manufacturer of a product that may cause a consumer product exposure to enter into an agreement with the retail seller that allocates legal responsibility for the warning between them by contract in a manner different from the regulation, so long as the consumer receives the warning.
This written agreement binds the parties and supersedes the requirements of 27 Cal. Code Regs § (b),(c),(d) and (e).

19. Internet Sales For internet sales, the warning may be provided:
-on the product display page
-via hyperlink on the product display page with the word “WARNING”
-or by otherwise prominently displaying the warning “prior to completing the purchase” (e.g., by providing a pop-up warning as the consumer is proceeding with the purchase)

20. Internet Sales (cont’d)
Note: A warning is not prominently displayed if the purchaser must search for it in the general content of the website. FSOR at 89.
Online warnings must be provided even if the actual product is labeled with a warning.
If the product itself contains an on-product short-form warning, the website may utilize the same short-form content warning. 27 Cal. Code Regs § 25602(b).
If only selling online, then a corresponding on-product warning is not required.

21. Internet Sales (cont’d)
“Where the product manufacturer has included the warning on a product label or labeling, the retail seller may use the same warning language on its website or catalog or provide a picture of the label or labeling for the product to the extent that the warning is readable and legible in the picture.” FSOR at 89.

22. Content of New Consumer Product Warnings (27 Cal
Content of New Consumer Product Warnings (27 Cal. Code Regs §§ ) – Options for On-Product Warnings
There are two options for safe harbor on-product warnings: 1) the long-form warning; and, 2) the short-form warning.
Note: The short-form warning is intended by OEHHA to be used only when there is not sufficient space on the product to accommodate the long-form warning.

23. Listed Chemical & Type of Exposure
A long-form safe harbor warning must contain the phrase “This product can expose you to…” and specifically identify the chemical(s).
A warning complies with Proposition 65 if it identifies one or more of the listed chemicals in the consumer product for which the warning is being provided.

24. Listed Chemical & Type of Exposure (cont’d)
When a warning is being provided for both cancer and reproductive toxicity, the warning must include the name of one or more chemicals for each endpoint, unless the chemical is known to cause both cancer and reproductive toxicity and is identified as such in the warning.
Otherwise, there is no requirement that more than one chemical be listed, even if there is more than one that will potentially cause exposure.

25. Capitalization & Graphic Symbol
“WARNING” must be in all capital letters and bold print.
A graphic with an exclamation point in a yellow triangle must appear to the left of “WARNING.”
The symbol consists of a black exclamation point in a yellow equilateral triangle with a bold black outline.

26. Size & Placement
“Consumer product exposure warnings must be prominently displayed on a label, labeling or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign,” that it would likely be “read and understood by an ordinary individual under customary conditions of purchase or use.”
Some regulators are interpreting this to mean the consumer must be given the warning prior to purchase.
The statute refers only to a requirement that the consumer receive the warning “prior to exposure.”

27. Size & Placement (cont’d)
For the short-form on-product warning, the font size must be no smaller than 6 point type but at least as large as the other consumer information on the product (“consumer information” defined to include warnings, ingredients and nutritional information, but not the name of the product).

28. Foreign Language Requirement
“Where 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.”
Consumer product information includes such things as “warnings, directions for use, ingredient lists,” but does not include “brand name, product name, company name, location of manufacture or product advertising.”

29. Foreign Language Requirement (cont’d)
The foreign language requirement also applies to food and dietary supplements exposure warnings that are provided on product signs, labels or shelf tags.
Note: The “trigger for an alternative language warning is when a business provides other “consumer information” (as defined in 27 Cal. Code Regs § (c)) regarding the product in an alternative language.” FSOR at 95.
The foreign language requirement would also be triggered when other consumer information regarding a product in an alternative language is provided on the internet.

30. Long-Form Safe Harbor Warning
Examples of new warning language for the long-form safe harbor warning:
Carcinogens
WARNING: 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

31. Long-Form Safe Harbor Warning (cont’d)
Reproductive Toxicants WARNING: 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 birth defects or other reproductive harm. For more information go to

32. Short-Form Safe Harbor Warning
Examples of new warning language for the short-form safe harbor warning:
Carcinogens
WARNING: Cancer-
Reproductive Toxicants
WARNING: Reproductive Harm-

33. On-Product Food & Dietary Supplements Warnings
If a warning is provided for an exposure from an actual food itself (or dietary supplements), and not from the packaging/container, and is provided on the food product label, then the warning must be set off from other surrounding information, “enclosed in a box” and the triangle/exclamation point symbol is not required.
For exposures from the food itself, the short-form warning is permissible if there is not enough space on the label for the long-form safe harbor warning.

34. On-Product Food & Dietary Supplements Warnings (cont’d)
Examples of long-form warning to be used for food on-product labels:
Carcinogens
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

35. On-Product Food & Dietary Supplements Warnings (cont’d)
Reproductive Toxicants 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 birth defects or other reproductive harm. For more information go to

36. On-Product Food & Dietary Supplements Warnings (cont’d)
Examples of short-form safe harbor warnings to be used for food on-product labels when there is insufficient space for the long-form warning:
Carcinogens
WARNING: Cancer-
Reproductive Toxicants
WARNING: Reproductive Harm-
Combination
WARNING: Cancer and Reproductive Harm-
   

37. Foods & Non-Alcoholic Beverages for Immediate Consumption on or off Premises
Three options for warning for food facilities:
8 ½ x 11 sign, with no less than 28-point font, placed so that it is readable and conspicuous to consumers at each public entrance to the facility where food or beverages may be consumed.
Notice or sign no smaller than 5x5, with no less than 20-point font, placed at each point of sale that is readable and conspicuous.
Warning on menu or list describing food or non-alcoholic beverage offerings, with no less than the largest font size used for the names of the general menu items.
See Cal. Code Regs § , Warnings for Restaurants

38. Foods & Non-Alcoholic Beverages for Immediate Consumption on or off Premises (cont’d)
Example warning:
WARNING: Certain foods and beverages sold or served here can expose you to chemicals including acrylamide in many fried or baked foods, and mercury in fish, which are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to
Liquidated penalty: Cal. Health & Safety Code § (k)(2)(B)(i)

39. OEHHA Website for Proposition 65
The new safe harbor warnings require a link to the new OEHHA “Lead Agency Website.” The website address is:
The website is intended to provide information to the public about exposures to listed chemicals in different types of products, general information concerning the health effects of listed chemicals, how individuals in general may be exposed to chemicals from various kinds of products, and steps they can take to reduce or avoid exposures.

40. OEHHA Website for Proposition 65 (cont’d)
Under its new authority, OEHHA is authorized to require businesses to submit, upon request, a variety of information, including the identity of the chemical(s) for which a warning is being issued and the location and concentration of the chemical(s).
Note: OEHHA is planning to work with trade groups and industry associations for information to populate its website. It is unlikely that OEHHA will request product/chemical information directly from retailers or individual businesses.

41. Additional Questions or Comments?
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