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Here's What You need to Know about Prop 65's New Labeling Rules

Aug 2018

Changes are coming for California’s Safe Drinking Water and Toxic Enforcement Act of 1986. Known as Proposition 65 (or Prop 65), the law requires companies to provide clear and reasonable warnings to people in the state about potential exposure to substances that can cause cancer, birth defects, or reproductive harm.

The Vinyl Institute recently sponsored a webinar to help companies across the vinyl value chain understand what they need to know before new warning label requirements take effect on August 30. The webinar was led by Keller and Heckman’s JC Walker and Christopher Van Gundy. Here’s what we learned.

Prop 65 remains wide in scope.

JC Walker stressed that it is important to understand “the formulation of your products and whether or not, as you distribute them downstream, they contain a Prop 65 warning obligation.” The scope of the law is broad and covers almost 950 chemicals, including those in dyes, solvents, pesticides, drugs, and food additives.

The labeling requirements are changing.

The fundamentals of the requirements have not changed. If you didn’t have to provide a Prop 65 warning before, you would not have to start. But if you are subject to Prop 65 requirements, you will continue to need to provide warning labels concerning occupational exposures, environmental discharges, and consumer product sale or use.

If you are subject to the requirements, key changes include:

·         the need to provide a pictogram

·         the need to identify at least one chemical and the potential exposure (i.e., cancer, reproductive toxicity)

·         a translation requirement (when you already provide product information in other languages)

·         minimum font requirements (i.e., the fine print can’t be too fine)

The changes also allow for companies to opt for “short” warning labels that include a website link to their full Prop 65 disclosure text.

There are new supply chain obligations.

Walker said that new supply chain obligations are intended to minimize the burden on retailers. This doesn’t mean, however, that resin manufacturers need to start sticking warning labels on your products. Instead, most resin manufacturers will likely continue to provide information via their safety data sheets.  Assuming the safety data sheets (SDS) comply with OSHA and/or California regulations, that is all Proposition 65 requires to address potential occupational exposures.  To the extent, however, that a company in the vinyl supply chain is providing a component or product for consumer sale, then it should ensure a written notice that a Prop 65 warning will be required accompanies its product downstream. That notification should include all the necessary warning labels for the downstream retailer. In addition, Walker stressed that you will want to get a written receipt for each notification.

The litigation won’t stop.

Christopher Van Gundy talked about the ease with which individuals and special interest groups can initiate a lawsuit under Proposition 65 — and the difficulty of defending such lawsuits. As a result, almost all are settled out of court. He noted, however, that some companies are now taking the extra step of going into court to get a consent judgment against them. While more costly upfront, this new tactic means that no one else can sue you again for the same violation under Prop 65.