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USA: Californian proposal to clarify warning providing requirements under Proposition 65

FEBRAURY 2020 – RELEVANT FOR: ELECTRICAL AND ELECTRONICS, HARDLINES, SOFTLINES, TOYS AND CHILDRENS PRODUCTS

Recently, the California Office of Environmental Health Hazard Assessment (OEHHA) published a notice1 proposing to amend the Proposition 65 warning requirements for products sold over the internet or through a catalog. Public can submit their comment2 by 31 March 2020.

Since the new warning regulation came into effect from August 2018, OEHHA has received a number of inquiries concerning the warning requirements for internet and catalog purchases. Some businesses have question on what products the internet or catalog warning applies to. Therefore, OEHHA decided to provide more clarification and specificity to the current warning requirements for internet and catalog sales.

The highlight of proposed amendments is as follows:  

  1. Clarify that the alternative method to provide a warning by electronic device or process is intended to apply to products purchased at the physical retail location.
  2. Specify the purchases made using a mobile device application fall into “internet purchases”.
  3. State that the internet or catalog warning providing requirements also apply to tailored warnings for specific products such as furniture, food, alcoholic beverages.
  4. Clarify that tailored warnings for specific products are required to comply with foreign language translation requirements.

The proposed amendments also include revisions to the specific provisions of alcoholic beverages, including the warning requirements for alcoholic beverages that are sold remotely and then later delivered to consumers.

OEHHA has developed two guidance documents2,3 with their responses to the frequently asked questions regarding the Proposition 65 warning requirements, as well as the internet and catalog warnings. The proposed regulation will help the businesses to more understand the warning methods for consumer products sold in different ways.

[1] OEHHA notice for proposed rulemaking

[2] OEHHA notice to extend the public comment period

[3] OEHHA guidance document “Questions and Answers for Businesses"

[4] OEHHA guidance document “Questions and Answers for Businesses: Internet and Catalog Warnings”

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