Changes to California Prop 65 Warnings

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The California Office of Environmental Health Hazard Assessment (OEHHA) and the California Attorney General each adopted regulatory amendments to the Proposition 65 regulations at the close of August 2016. Under Prop 65, companies are required to warn consumers of potential exposure to substances which cause cancer or reproductive harm.

The OEHHA amendments modify Article 6 of Title 27 of the California Code of Regulations, which sets forth the method and content deemed to be clear and reasonable warnings, often referred to as “safe harbor” under Proposition 65. The California Attorney General amendments (AG Amendments) modify the Proposition 65 private enforcement regulations and affect settlement terms, penalty amounts and attorney’s fees in actions brought by private plaintiffs.

Anyone who has been to California can’t help but see the ubiquitous Prop 65 warnings. That’s because many companies, to avoid the cost of defending themselves against private citizen lawsuits under the “bounty hunter” provisions, have proactively posted the signs if their products contain any listed chemical, regardless of whether there is potential for exposure.

Under the amendments, businesses that sell products in California will have to revamp their Proposition 65 warnings and provide more detail to consumers than before. The revised warnings must specifically identify at least one toxic chemical, hyperlink to OEHHA’s new website, and use specific language that differs between consumer products, food, alcohol, and many other categories.

The new warning requirements will take effect August 30, 2018.



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