California Proposes Amendments to Proposition 65 Warning Regulations

On January 31, 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed amendments to its Proposition 65 warning regulations. The proposal comes in response to stakeholder comments to OEHHA, highlighting ambiguities in the Article 6 warning regulations that became effective in August 2018. As summarized below, the proposed regulations are relatively limited in nature and are intended to promote the ability of businesses to comply effectively with the Article 6 warning regulations.

By way of background, Proposition 65 is a right-to-know law that requires individuals to receive a clear and reasonable warning before being exposed to certain chemicals that California deems to be carcinogens or reproductive toxicants under Proposition 65. Exposures covered under Proposition 65 include discharges of listed chemicals into sources of drinking water, employee exposures at the workplace, and exposures to individuals from consumer products. In 2016, OEHHA implemented sweeping new Article 6 warning requirements that became effective in 2018. For an overview of those regulations, see our summary here.

The January 31, 2020 proposal offers a number of amendments that are intended to clarify the intended meaning of the Article 6 warning regulations. Again, the changes do not reflect major changes to the intended scope of the current regulations.

We have summarized the proposed changes below:

• The current regulations require warnings for “internet sales.” Based on confusion as to whether sales through a mobile device are properly covered by this language, OEHHA is proposing to explicitly state that internet sales indeed include sales through a mobile device.
• The current regulations offer the option of providing warnings via an electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of a product; the proposal makes it explicit that this is an option for providing warnings only at a “physical retail location.”
• There are several cross-references in the current regulations to Section 25607.1, which is the first of the product-specific safe harbor warning regulations (e.g., for food, furniture, etc.). Section 25607.1 addresses warnings for food products. OEHHA is proposing to change these references to Section 25607, et seq, which is the general regulation regarding “Specific Product, Chemical, and Area Exposure Warnings.” In other words, this clarification would make clear that the provisions apply to all products that are subject to specific safe harbor warnings under Proposition 65.
• OEHHA is proposing to amend the existing regulation on catalog warnings to state that product-specific warnings (e.g., for food, furniture, etc.) may be provided; the current regulation refers only to standard (not product-specific) consumer product warnings described under Section 25603(a) for catalog warnings.
• The proposed regulations would state under Section 25607 (“Specific Product, Chemical, and Area Exposure Warnings”) that product-specific warnings must be provided for online or catalog sales of those products. Similarly, the proposal would explicitly state that foreign language translations of product-specific warnings will be required as described under Section 25602(d).

With regard to alcoholic beverages, the 2018 amendments left in place language referring to warnings that need to be provided to purchasers who receive alcoholic beverages “through package delivery services.” The proposal removes the reference in Section 25607.3 to “package delivery services” and replaces it with language stating that a “product-specific” alcoholic beverage warning must be provided “prior to or during the purchase of the product” for any deliveries of alcoholic beverages “to consumers in California at a location other than the point of sale.” The method for providing this warning is not specified.

The proposal also adds a new paragraph to the regulation to specifically address internet and catalog sales. Since August 2018, there have been a number of enforcement actions against online sellers of alcoholic beverages that had not been complying with the internet warning requirements. According to the Initial Statement of Reasons for the newly proposed regulations, the Attorney General is in the process of settling an enforcement action with alcoholic beverage retailers. In the meantime, OEHHA is proposing to amend the Article 6 regulations to allow other retailers of alcoholic beverages to use the compliance method in the Attorney General’s settlement, which is not public at the time of this writing.

The new provision states that, in addition to warnings provided in catalogs and/or online, the Proposition 65 warning for alcoholic beverages must also be “provided to the purchaser or delivery recipient prior to or contemporaneously with the delivery of the product.” Consistent with the existing regulations, the warning can either be provided in or on the shipping container in a type size no smaller than “the largest type size used for consumer information on the product” (and in no cases smaller than 8 point font). Interestingly, the new proposed provision also provides the new option of delivering the warning by email or text message as part of the electronically delivered receipt or confirmation.

Finally, the proposal expands the obligation to provide foreign language warnings to alcoholic beverages. Whereas the current regulations require foreign language warnings when foreign languages are used for “labeling or advertising the product on the premises,” the proposal would require foreign language warnings for labeling or advertising on physical premises but also on “the internet, including mobile device applications, or catalog.”

OEHHA is accepting comments through March 16, 2020. Comments may be submitted electronically at https://oehha.ca.gov/comments.