Key Facts on California’s Amended Proposition 65 ‘Clear and Reasonable’ Warnings Rules Effective August 30

August 23, 2018Alerts Environmental Alert

If you manufacture, sell or distribute products (including food and beverages) for sale in California that contain or are sold with Proposition 65 warnings, you have probably heard conflicting information about the amended Prop 65 warning rules that become effective on August 30. As with the Prop 65 statute, the Prop 65 rules are not clear or reasonable, nor are the amended warning rules, hence the current confusion. 

Keeping in mind the following things about the amended rules may clear up some of the confusion.

  • They change only the required content and format of warnings and where warnings need to be placed and transmitted.
  • They provide that your current, old format warnings can remain on and are compliant for all products manufactured before August 30, even if these products are sold after August 30 or next year.
  • They provide that if your products have warnings that were approved in a Prop 65 consent judgment (CJ), your CJ warnings can continue to be used after August 30.
  • They require internet and catalog warnings, but only for products that have always required warnings – not for all products sold over the internet to California customers.  Remember, a product can contain Prop 65-listed chemicals and still be exempt from a warning.  The mere presence of Prop 65 chemicals in a product does not mean, and never has, that the product requires a warning.
  • The California Legislature did not amend the Prop 65 statute.  This means the fundamental obligations set forth in the 1986 Prop 65 statute will not change on August 30.
  • The California Office of Environmental Health Hazard Assessment (OEHHA), which only implements Prop 65, amended its regulation entitled “Clear and Reasonable Warnings.”  It did not amend any other regulations or requirements.
  • OEHHA cannot change whether a product requires or is exempt from a Prop 65 warning, nor can it change which parties in the supply chain are primarily responsible for providing Prop 65 warnings - only the Legislature can do these things.  This means that:
    • Products that required warnings before the amended rules will continue to require warnings.
    • Products that were exempt from warnings will continue to be exempt.
  • For the vast majority of products sold in California, manufacturers have always determined whether their products need warnings, not other parties in the supply chain. This will not change after August 30. If other parties in the supply chain receive a product from a manufacturer without a warning, they are not required to place a warning on the product, nor will they be required to do so after August 30.

If you need additional clarification or guidance on Prop 65 and the new amendment, please contact Philip Hinerman at 215.299.2066 or Margaret Cerrato-Blue at 206.389.1799.