USA: Big changes to Proposition 65 warning regulations
On 30 August 2016, the California’s Office of Environmental Health Hazard Assessment (OEHHA) has adopted significant amendments1 on how clear and reasonable warning is provided under the Safe Drinking Water Enforcement Act of 1986, commonly known as “Proposition 65”. Proposition 65 requires business with 10 or more employees to provide clear and reasonable warning statements in the California State to any listed chemical(s) known as carcinogenic and reproductive toxic.
Providing a 2-year transition period, the new warning regulations2 require business to provide more detail to consumers and will effective on 30 August 2018. Until then, businesses may use either the old warnings or the new ones.
Some notable changes to the new warning regulations are summarised as follows:
- The use of a mandatory symbol consisting of a black exclamation mark in a yellow triangle with a bold black outline for non-food exposure warning.
- The word “WARNING” must be displayed in all capital letters and bold print, the warning statement indicating that the product “can expose“ individuals to listed chemicals rather than “contains”, and also the new requirement to include a URL to the OEHHA website.
- In order to minimize potential economic impact from printing costs, the regulations provide that if the relevant signage or labeling on a product does not utilize yellow, the triangle symbol may be printed in black and white.
- Where a warning is being provided for an exposure to a single chemical the words “chemicals including” may be deleted from the warning content.
- OEHHA does not agree3 that every listed chemical must be included in safe harbor warning content. Business is allowed to select at least any one of the listed chemicals identified for each endpoint (cancer and reproductive toxicity), even if the business is providing the warning for multiple chemicals.
- For products with consumer information (e.g. warnings, directions for use, ingredient lists, and nutritional information) in a language other than English, the warnings must be also provided in that language in addition to English.
- The type size of an on-product warning must not be smaller than 6-point type and the largest size used for other consumer information on the product.
- Special rules for internet and catalogue purchases are also introduced.
- The retailer shall promptly provide the name and contact information for the manufacturer, producer, packager, importer, supplier, and distributor of the product to OEHHA, Attorney General and private plaintiff on written request.
This regulatory action repeals all the regulatory provisions of Title 27 of the California Code of Regulations, Article 6 (sections 25601 et seq.), except those added via an emergency rulemaking in April 2016 related to warnings for exposures to bisphenol A in canned foods and beverages (Sections 25603.3(f) and (g))4.
 Notice of adoption
 Regulatory text published on 2 September 2016
 Final Statement of Reasons
 E-ssentials 6 in May 2016