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The new consumer warning requirements promulgated by the California Office of Environmental Health Hazard Assessment (OEHHA) in August 2016 will take full effect in August 2018. The California Proposition 65 regulation prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer, birth defects or reproductive harm without providing a “clear and reasonable warning”. The content and rules for the warning have been revised.

SAFEGUARDS | Consumer Products NO. 110/18

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Proposition 65 does not ban or restrict the sale of more than 900 listed chemicals from products or production processes, but simply requires a clear and reasonable warning be given to any consumer in California exposed to the chemical(s). The warning requirement applies to any business with 10 or more employees in the chain of distribution, including manufactures, distributors and retailers selling products in California. Businesses that sell their products online or through catalogs also have additional warning requirements to ensure that the warning is clearly associated with the item being purchased. Violators of Proposition 65 may be subject to potential liability including penalties of up to $2,500 per day for each violation.

The new warning label requirements specify the safe harbour warning for consumer products to state the product “can expose you to” a Proposition 65 chemical, rather than saying the product “contains” the chemical. The warning must also include:

  • A graphic triangular yellow warning symbol containing a black exclamation point with a black outline
  • The word “WARNING” in bold print and capital letters
  • Specify the name of at least one listed chemical that prompted the warning
  • Include the internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to the chemicals
  • For certain warnings, where other consumer information is provided in a language other than English, the warning must also be provided in that language

SGS CRS SafeGuardS 11018 Figure 2 749x210 EN 18 V1 

The example of a safe harbour warning for an exposure to one or more chemicals that are either carcinogens or reproductive toxicants:

  • WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause cancer [ or birth defects or other reproductive harm]. For more information, go to www.P65Warnings.ca.gov.

The example of a safe harbour warning for exposures to one or more chemicals that are listed as both a carcinogen and a reproductive toxicant:

  • WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

The example of a safe harbour warning for products that contain multiple listed chemicals, some of which are carcinogens and some of which are reproductive toxicants:

  • WARNING: This product can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause cancer and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.

The revised regulation allows a “short form” warning label on products that includes the warning symbol and text as follows:

SGS CRS SafeGuardS 11018 Figure 1 

The new regulations clarify and place the primary responsibility for providing the requisite Proposition 65 warning on product manufacturers, producers, packagers, importers, suppliers or distributors. Businesses must either (i) place a warning that complies with the regulations on the product or (ii) provide the retailers with notice and warning materials that specifically identifies the product which requires a warning and receive an acknowledgement that the notice and materials were received. The notice must be renewed after 6 months during the first year and annually thereafter.

It is notable that the use of the specific “safe harbour” warnings included in the regulations is not actually required. Manufacturers and retailers can use any clear and reasonable warning; however, using the examples provided is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses can use either the current or new warnings on products manufactured before August 30, 2018. Products manufactured after August 30, 2018 must be in compliance with Proposition 65 by using the new warning system.

Throughout a global network of laboratories, SGS can offer comprehensive testing, product assessments and consultancy services related to California Proposition 65 to assist your risk management in your supply chain for consumer goods such as DIYs, electrical and electronics, hardgoods products, juvenile products, and textile & toy products. For further information, please visit our website.

Reference:

  1. SGS Safeguards No. 161/16 [1]
  2. Proposition 65 and its regulations [2]
  3. A side-by-side comparison of the current and new warning regulations [3]

For enquiries, please contact:

Louann Spirito
US & Canada Softlines Business Head
t: +1 973 461 7919

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