The Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) requires the state of California to publish a list of chemicals that are known to cause birth defects, cancer or other health problems. This initiative was intended to allow the state to address concerns over exposure to toxic substances by both requiring business to make appropriate disclosures to residents and restricting the release of significant amounts of listed chemicals into the state drinking supply. The Office of Environmental Health Hazard Assessment (OEHHA) is authorized to manage and administer Prop 65, including reviewing information and disclosures that are available for chemicals under the Prop 65 list.

In August, 2016, OEHHA approved revised warning requirements to take effect in August, 2018. Under the existing scheme, a business with 10 or more employees in California is forbidden from intentionally or knowingly exposing an individual to a chemical listed under Prop 65 without a warning that is considered “clear and reasonable” regarding the dangers posed by the substance. Under the new regulations, the content and character of the warning regarded as “clear and reasonable,” and the entities responsible for issuing such a warning have been amended.

The warning now specifically requires that the entity name one or more of the listed chemicals in the product for which the warning is issued. Thus, a “clear and reasonable warning” for a consumer product about exposure to listed carcinogens would read: “This product can expose you to chemicals including [names of chemicals], which are known in the State of California to cause cancer.” Warnings against the risks of exposure to reproductive toxins, or to both carcinogens and reproductive toxins, would be similarly worded. The warning must also include the word “WARNING” and comply with accompanying symbols, color and spatial requirements.

Another important revision under the new regulation is a discussion of which entities are required to abide by these warning requirements. Accordingly, the manufacturer, producer, importer, supplier and distributor are responsible for including legally compliant warnings on their consumer products. While the law is meant to emphasize liability for these parties in the chain of production, rather than on the retailer, the retailer can still be held liable for failure to comply with warning requirements if the product is sold under the retailer’s own brand or other conditions have been met.

Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.