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California Issues Updated Proposal on Proposition 65 Warnings

The California Office of Environmental Health Hazard Assessment recently issued a revised proposal to amend in various ways the Proposition 65 warning requirements of Article 6 of Title 27 of the California Code of Regulations. As we have extensively reported, Proposition 65 requires businesses to inform consumers in the state about significant amounts of listed chemicals in consumer products, food, drugs and other goods, and this requirement is generally fulfilled by labelling products with a warning statement that currently may include such language as “Warning: This product contains a chemical known to the State of California to cause cancer, birth defects or other reproductive harm.” For over two years California authorities have been working on a proposal aimed at reducing unnecessary litigation and providing more useful information to the public on what they are being exposed to and how they can protect themselves.

The revised proposal includes a number of amendments and clarifications in response to the public comment received. For example, the new proposal would allow a business to provide a consumer product warning for a single chemical exposure by deleting the words “chemicals including” from the safe harbour warning content. OEHHA has also clarified that businesses are free to provide a warning that is different from the safe harbour methods and content specified in the regulations as long as the warning complies with Section 25249.6 of the Act. In addition, the web link that must be included on warnings has been shortened for the sake of simplicity and consistency with the existing structure of the warnings website.

The revised proposal would require the following minimum elements for consumer product exposure warnings.

  1. A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline, although such symbol may be printed in black and white in instances where the sign, label or shelf tag for the product is not printed using the colour yellow. The symbol would have to be placed to the left of the text of the warning in a size no smaller than the height of the world “WARNING”.
  2. The world “WARNING” in all capital letters and bold print.
  3. For exposures to listed carcinogens, the words “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. For more information go to www.P65Warnings.ca.gov.”
  4. For exposures to listed reproductive toxicants, the words “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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”
  5. For exposures to both listed carcinogens and reproductive toxicants, the words “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.”
  6. For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words “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.”
  7. Where a warning is being provided for an exposure to a single chemical, the words “chemicals including” may be deleted from the warning content.

Consumer product exposure warnings would have to be provided using one or more of the following methods: (i) a product-specific warning provided on a posted sign, shelf tag or shelf sign for the consumer product at each point of display of the product; (ii) a product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product without requiring the purchaser to seek out the warning; (iii) a label that complies with the prescribed content requirements; and/or (iv) an on-product warning that complies with the prescribed content requirements. In the case of point (iv), the entire warning would have to be in a type size no smaller than the largest type size used for other consumer information on the product. In no case could the warning appear in a type size smaller than six-point type.

An on-product warning could be provided using all of the following elements: (i) the symbol described above; (ii) the word “WARNING” in all capital letters in bold print; (iii) for consumer products that cause exposures to a listed reproductive toxicant, the words “Reproductive Harm - www.P65Warnings.ca.gov”; and (iv) for consumer products that cause exposures to both a listed carcinogen and a reproductive toxicant, the words “Cancer and Reproductive Harm - www.P65Warnings.ca.gov.” A person providing an on-product warning would not be required to include within the text of the warning the name or names of a listed chemical.

The warning would be allowed to contain information that is supplemental to the required content only to the extent that it identifies the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals. Such supplemental information could not be substituted for the required warning content, however.

The proposal includes specific requirements for warnings related to food, alcoholic beverages, prescription drugs, raw wood products, furniture, diesel engines, passenger vehicles, recreational vessels and petroleum products. In the case of furniture, for example, the warning would have to be affixed to the product in the same manner as other consumer information or warning materials that are provided on the product and (i) a notice or sign no smaller than 8.5 by 11 inches would need to be displayed either at each public entrance or point of display and printed in no smaller than 28-point type, or (ii) a notice would have to be printed or stamped in no smaller than 12-point type on each receipt.

The on-product warning for furniture would have to contain (i) the aforementioned symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline; (ii) the word “WARNING” in all capital letters and bold print; and (iii) the words “This product can expose you to chemicals including [name of one or more chemicals known to cause cancer, name of one or more chemicals known to cause reproductive toxicity, or name of one or more chemicals known to cause both cancer and birth defects or other reproductive harm], 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/furniture.” The notice for furniture would have to include the word “NOTICE” in all capital letters and bold print as well as the words “Some furniture products can expose you to chemicals known to the State of California to cause cancer or birth defects or other reproductive harm. Please check on-product label for warning information.”

OEHHA will accept comments on its revised proposal by 6 June.

In other news of potential interest, OEHHA added effective 20 May tetrachlorvinphos, parathion and malathion to the list of chemicals known to the state of California to cause cancer for purposes of Proposition 65. Beginning one year after a chemical is added to the list, businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to that chemical unless they can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm. However, no such warning is required if exposure to a chemical occurs at or below any established safe harbour level, and OEHHA states that it intends to propose a safe harbour level for malathion prior to the effective date of the warning requirement. Since the original Proposition 65 list was first published in 1987 it has grown to include approximately 900 chemicals.

Content provided by Picture: HKTDC Research
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