We Manufacture Under CA Prop 65

What is Proposition 65?

In 1986, California voters approved Proposition 65, an initiative to address their growing concerns about exposure to toxic chemicals.  That initiative is officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986.  The law requires California to publish a list of chemicals known to cause cancer or reproductive toxicity, and for businesses with 10 or more employees to provide warnings when they knowingly and intentionally cause significant exposures to listed chemicals.

This list currently includes more than 900 chemicals. Proposition 65 does not ban or restrict the sale of chemicals on the list.  The warnings are intended to help Californians make informed decisions about their exposures to these chemicals from the products they use and the places they go.

The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program.

What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?

Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply state that a chemical is present that causes cancer or reproductive harm, but they do not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it.

New OEHHA regulations, adopted in August 2016, became operative in August 2018 and changed the safe harbor warnings that are deemed to comply with the law in several important ways.  For example, the new warnings for consumer products now say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical.  They also include:

  • The name of at least one listed chemical that prompted the warning
  • 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 them
  • A triangular yellow warning symbol  on most warnings

What Are Other Highlights of the New Warnings Regulations?

The new warning regulation also:

  • Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings
  • Adds new “tailored” warnings that provide more specific information for certain kinds of exposures, products, and places
  • Requires website warnings for products sold over the Internet for businesses that wish to comply with the “safe harbor" warning requirements
  • Requires warnings in languages other than English in some cases for businesses that wish to comply with the “safe harbor” warning requirements

How Do the New Warnings Compare to the Old Warnings?

The old Proposition 65 warnings stated,

“WARNING: This product contains a chemical known to the State of California to cause cancer.”

A sample new warning looks like this:

 WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”

Why did Proposition 65 Warnings Change?

In 2013, Gov. Edmund G. Brown Jr. proposed reforms to strengthen Proposition 65.  The Governor called for changes to “require more useful information to the public on what they are being exposed to and how they can protect themselves.”  He added, “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”

In 2015, UC Davis researchers interviewed more than 1,500 randomly selected Californians and asked them to compare the new specific warnings to the current generic warnings.  The results were dramatic – 77 percent said the new warnings would be more helpful than the current warnings.

What Are the Goals of the New Warnings?

The new warnings are intended to:

  • Make warnings more meaningful and useful for the public
  • Reduce “over-warning” in which businesses provide unnecessary warnings for the content of a product, rather than exposure to a chemical
  • Give businesses clearer guidelines on how and where to provide warnings

When Did the Changes Take Effect?

In August 2016, OEHHA adopted the new regulations.  Businesses had the option to choose whether to provide the old warning or the new warning during the regulation’s two-year phase-in period.  On August 30, 2018, the old warning regulations expired and with limited exceptions described below, businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 now need to follow the new warning requirements.

What is the Purpose of including the URL for the Proposition 65 Warnings Website in the safe harbor warnings?

In 2016, OEHHA launched a new website, www.P65Warnings.ca.gov, to provide the public with more information on chemicals, products, and locations associated with Proposition 65 warnings.  The website is part of the state’s effort to provide Californians with more useful information on chemicals they are being exposed to and ways to protect themselves.

People who see Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures.  The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, such as from furniture products or enclosed parking facilities.  It also provides answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.

Are Businesses Required to Provide the New Warnings?

No.  A business is not required to use the new safe harbor warnings to comply with the law.  However, using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions.  Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.

Businesses have the option to provide different warnings if they believe they comply with the law.  Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.

Do Products Manufactured Before August 2018 Need the New Warnings?

No.  Products manufactured before August 30, 2018 do not need new warnings if they meet the requirements that were in effect at the time of their production.

Do Special Warnings Approved by Courts in Previous Legal Settlements Remain in Effect?

Yes.  The regulation states that OEHHA recognizes court-ordered settlements and judgments that impose specific Proposition 65 warnings.  This exception only applies to parties to those settlements or judgments.

When Must a Business Provide a Warning in a Language Other Than English?

When a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English.  Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.

When are Internet Warnings Required?

For Internet purchases of a consumer product, warnings can be provided by including a warning on or with the product and a clearly marked hyperlink using the word WARNING on the product display page.  For more information on warnings on internet and catalog purchases, see Questions and Answers for Businesses: Internet and Catalog Warnings.

Which Exposures, Products, and Places Have Specific Tailored Warnings?

In addition to the general warnings for chemical exposures from consumer products, the new regulation provides specific warnings for exposures from:

  • Alcoholic beverages, food, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, and recreational vessels
  • Enclosed parking facilities, amusement parks, petroleum products, service stations and vehicle repair facilities, designated smoking areas, and hotels
  • Other tailored warnings may be added over time

Can Businesses Request Additional Tailored Warnings?

Yes.  The regulations allow businesses to request new tailored warnings pursuant to Government Code sections 11340.6 and 11340.7 (Petition for Rulemaking).  OEHHA will consider these requests and can amend the regulation to add tailored warnings as appropriate.

What Are the Warning Responsibilities for Manufacturers and Retailers?

Product manufacturers have primary responsibility for providing Proposition 65 warnings.  Manufacturers can choose whether to put warning labels or labeling on their products, or to provide notices to their distributors, importers or retail sellers that a product may cause an exposure to a listed chemical that requires a warning and provide warning signs or other warning materials.  Manufacturers can also enter into written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before he or she is exposed to a Proposition 65 chemical.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.  Notices must be renewed and confirmation received by February 28, 2019, then annually thereafter.

Are There Other Regulations to Assist Businesses with Warning Requirements?

Yes.  In addition to other forms of compliance assistance, OEHHA has regulations that explain the procedures for requesting advice from the agency including Interpretive Guidelines and Safe Use Determinations for specific types of exposures.

For example, OEHHA may issue an interpretive guideline that clarifies warning requirements based on specific factual situations.  Current Interpretive Guidelines apply to exposures to sulfur dioxide in dried fruits, chlorothalonil in tomato products, methanol from pectin that occurs naturally in fruits and vegetables, and hand-to-mouth transfer of lead through exposure to consumer products and fishing tackle.  For more information on Interpretive Guidelines, see https://oehha.ca.gov/proposition-65/interpretive-guidelines-proposition-65.

There is also a procedure for requesting a Safe Use Determination.  A Safe Use Determination is a written statement issued by OEHHA that interprets whether specific sets of exposures require warnings.  For example, in recent years, OEHHA has issued several Safe Use Determinations related to exposures to diisononyl phthalate (DINP) in vinyl flooring and outdoor furniture products.  For more information on the Safe Use Determination Process, see https://oehha.ca.gov/proposition-65/proposition-65-safe-use-determination-sud-process.

Where Can I Find More Information On Proposition 65 Warning Requirements?

A fact sheet addressing Questions and Answers for Businesses about Proposition 65 warnings is available on this website.  Proposition 65 related regulations are available on the WestLawNext website.

You can also contact the Proposition 65 Implementation Program office: (916) 445-6900 or email P65.Questions@oehha.ca.govsend email.