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The implementation date of the “clear and reasonable warning” amendment was August 31, 2018. What have we learned since then? What are some best practices for approaching compliance? What will be the future of the regulation?
If your company operates or sells products in the state of California, you’ve probably addressed California Prop 65 compliance. Prop 65 requires businesses to provide a warning that certain chemicals used in the production of their finished products could expose the public to hazardous substances.
Warning Label Situations
Occupational Hazard Warnings
Public Exposure Warning Labels
There is now just over 2 months until the amendment to article 6, “clear and reasonable” warning is implemented, and as we look at the scope of industries impacted, new labeling requirements will force companies selling products online to issue a Prop 65 warning to consumers who live in California. So, how does this work?
Before the amendment, online retailers were able to post a general warning at the bottom of their website, or in a subsequent product page.
The OEHHA now states – in order to be compliant, Prop 65 warnings need to be closely associated to each product that needs a label. In addition, the Prop 65 warning must be provided prior to the completion of a purchase. The OEHHA continued to outline that the the warning must be provided in 1 of 3 ways:
- Positioned on the product display page, and associated with that unique product
- Notifying consumers in the product description using the word “WARNING” and hyperlinking “WARNING” to a formal warning about the product
- Displayed to the consumer via a “pop-up” prior to check out
Displaying a warning symbol, or hyperlinking “WARNING” in a product description presents a challenge to online retailers looking to minimize friction during the buying process on their website. As notifications online need to be presented to consumers in California, a method that is gaining popularity is issuing the warning to consumers, only if they enter a California shipping address. Wayne Rosenbaum, Partner at Environmental Law Group, LLP further outlined this approach:
“Some companies are providing the warning as a popup that provides the warning when a California Zip code is typed into the ship to address. The use of a popup linked to the “ship to” address is not specifically addressed in the regulations. Thus, this approach may not fall within the safe harbor although it arguably provides a clear and reasonable warning. More concerning is situations where third party jobbers working independently or for the manufacturer place the product for sale on community web-sites such as e-bay or amazon without any warning.”
What wiggle room is there for interpretation of adequate prior purchase warning?
Will third party seller sites like eBay or Amazon have to shift their purchasing process for California consumers? If so, what would the best methodology be?
California Prop 65 Amendment Preparation Webinar
Source Intelligence, along with Wayne Rosenbaum recently debuted our Prop 65 Preparation webinar. Along with a detailed overview of internet warnings, here’s some of the topics we covered:
- Pre/post amendment regulation overview
- Labeling Variations
- Internet labeling, on-product labeling, packaging labeling, occupational labeling, public facility labeling and more unique situations.
- Bounty Hunter safeguarding best practices
- 60 day warning notice course of action overview
- Supply chain communication chain of custody
- Critical product information that needs to be passed through the supply chain
- Product chemical awareness
- Evidence-based data collection approach
- Declarations vs. product analytics
- Enterprise vs. SME compliance workflow examples