In December 2017 OEHHA, the California Agency that oversees Proposition 65, issued some modifications to labeling required on and with products effective in August 2018. Our review of these "modifications and comments" indicates that no changes are needed to labeling we have discussed. However there has been some clarification of the rules and the ability to now enclose the warning with the product in packaging instead of affixing it to the product.
Here is a brief review of the changes:
- A manufacturer or seller can appoint an agent to receive notifications regarding Prop 65 either physically or electronically.
- A warning may be included with a product as a separate sheet of paper, rather than actually affixed to the product. BUT the burden is on the seller to prove that the warning would be seen by the consumer. So affixing the warning or having a clear methodology to confirm the separate warning sheet with the product is still critical. It may be separate from the actual product but provided with it in or on the packaging or wrapping material.
- The clarifications also reinforce that the warning must be able to be seen by the consumer. As we have advised, do not bury them in multiple text lines and make sure that they stand out.
- Warning alternatives originally listed as "on product" are now called short-form. These are the warnings we did not recommend which would say CANCER and refer to the Prop 65 Website.
- There is also a requirement that furniture warnings refer to both kinds of risks if they exist- cancer and reproductive harm. Poor wording in the regulation had created an ambiguity making furniture seem different than other products. This is now eliminated.
- Modifications for food and fuels as well as vehicles exist but are not relevant to you.
I expect more will arise as we head towards August 2018. I will keep you posted. Please contact me with any questions