Are You Ready For The New Prop 65 Amended Regulation?

Did you know, that a major amendment to Prop 65 has taken place on 30^th August 2018?

In August 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) adopted new regulations that replaced Prop 65’s “clear and reasonable” warning provisions. Under Proposition 65, businesses with 10 or more employees must give a “clear and reasonable warning” to individuals in the state before knowingly and intentionally exposing those individuals to a chemical listed as known to cause cancer or reproductive toxicity. These new regulations, which allocate responsibility for providing warnings on consumer products sold in California and include new criteria for “safe harbor” warnings, became operative on 30^th August 2018.

The failure to comply with Prop 65 subjects manufacturers, distributor and retailers to potential liability, including penalties of up to $2,500 per day, per violation.

The main goals of the new warning include:

1. Making warnings more meaningful and useful for the public
2. Reducing “over-warning” in which businesses provide unnecessary warnings
3. Giving businesses clearer guidelines on how and where to provide warnings.

The major elements of new warning are:

1. A triangular yellow and black warning symbol (can be white and black only if the label for the product does not use yellow).
2. The warning must include the full chemical name of at least one chemical found in the product that is identified by OEHHA that is known to cause cancer or birth defects or other reproductive harm. If the product contains a chemical on both lists, at least one chemical from each list must be identified.
3. Change in language from “This product contains…” to “This product can expose you to…”
4. Link to the state’s Prop 65 internet site, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them.
5. Consumer products sold over the internet must provide a warning on the website to the consumer prior to completing the purchase and include a short-form warning on the product or full warning on the label meeting the requirements.
6. If a consumer product label or packaging contains consumer information in a language other than English, the Prop 65 warning must also be provided in that language in addition to English.

As per the new regulation affixing warning labels to safe products is illegal, and businesses can no longer use generic warning labels to protect themselves from liability. Although testing is not explicitly required by the new regulation, businesses that do not test their products for listed chemicals may expose themselves to “willful ignorance” claims.

How can you get compliant with the new requirements?

Businesses must first determine whether any products sold to consumers in California include any of the chemicals identified by OEHHA requiring a Prop 65 warning label. Even if your business currently labels products with a Prop 65 warning, the new regulations will require a determination of whether to use the truncated short-form warning label or the full warning label on each product. If the full warning will be used, each product will need a specific label identifying at least one of the chemicals identified by the business on OEHHA’s Prop 65 list.

ComplianceXL can help you to collect the substance level ppm for each of the homogenies material of the parts you are using in your product , validate and  provide an accurate information whether your product Is Prop 65 complaint.