California Prop 65 Ups Its Requirements
On August 30, the California Office of Environmental Health Hazard Assessment (OEHHA) will begin enforcing new warning requirements for California Prop 65. These changes apply to all products that are made after that date and contain any of the 900-plus chemicals that are on the OEHHA list as being known to cause cancer, birth defects or other reproductive harm.
Numerous PPAI articles, webinars and best practice guides have reiterated that the State of California requires businesses to provide a “clear and reasonable warning” before knowingly or intentionally exposing California consumers to any listed chemicals and substances. Failure to warn against such exposures can lead to serious fines and penalties against the manufacturer and retailer. In the promotional products industry, suppliers, distributors and end buyers are all subject to liability.
What Are The Changes?
PPAI’s Product Responsibility Action Group (PRAG) has just published a new Product Responsibility Best Practices Guide, which can be found at ppai.org/media/1814/pr-bp-proposition-65.pdf. This new guide explains in depth all the key changes, provides templates for the new warnings and gives suppliers and distributors detailed guidance for complying with the reforms.
In summary, the primary changes are these:
New Wording: The most obvious change is the new wording that is required in these warnings. The new “long form” warnings must state, “This product can expose you to …,” and must name the specific chemical or substance that triggers the warning (no abbreviations of chemical names, such as DEHP, are permitted). The state does allow companies to use a much simpler “short form” label that requires the following:
- A triangular warning symbol with an exclamation point; the color yellow must be used inside the triangle if yellow is also used in the product’s packaging;
- The word “WARNING” must be included in the label;
- The specific risk of harm, such as cancer, birth defects and/or reproductive harm; or both cancer and reproductive harm;
- A reference to the new OEHHA California Prop 65 warning website located at www. P65Warnings.ca.gov.
Disclosing the health risk: Although identifying the health hazard posed by the chemical in the product is not a new requirement, the short form label is much more direct. With the simple mention of cancer or reproductive harm, it sends a stronger message to the consumer about the chemical and the harm posed from exposure.
Providing separate internet and/or catalog warnings: These must be provided to consumers prior to or during the purchase. Therefore, if you sell products directly to consumers through the internet or a catalog, you must now provide a warning label that is identical to the one applied to the product, and the website or catalog warning should be prominently displayed before the consumer completes the purchase. As a courtesy, suppliers and distributors with business-to-business websites and catalogs should also provide warnings to clients to prevent unpleasant surprises when they receive products with Prop 65 warning labels on them. Transparency and early disclosure will help your customer make better informed purchasing decisions.
How To Comply With The New Requirements
There are many steps every supplier and distributor should take to protect their company from Prop 65 violations. Although there is no one-size-fits-all approach to product compliance, especially with Prop 65, there are some fundamental steps that every business should seriously consider to manage their risk. The following can be used as a road map for your Prop 65 compliance program. For the sake of brevity, all upstream factories and suppliers are identified as “vendors.”
To Label Or Not Label?
This is perhaps the first major decision you must make, whether you’re a supplier or distributor. There are several factors that may influence your decision to label or not, but the most critical questions to ask are:
Does your customer allow Prop 65 warning labels on its products? If “yes,” then ask if they will allow Prop 65 warnings on all products sold by you, whether or not the product is being shipped to states other than California.
- If “yes,” then get it in writing from your customer that they understand that all products sold by you will contain warnings.
- If “no,” then you will need to make special batches of products for California-only distribution, which can be confusing and costly.
- You should decide whether to use the long-form or the short-form warning label; get approval from your customers.
- You should work with your vendors to determine what chemicals are in the products that are also on the OEHHA Prop 65 List (found at www. p65warnings.ca.gov). This is important because the chemical must now be clearly identified in the warning (if you use the long-form label) and the exposure risk (cancer, birth defects or reproductive harm, or both cancer and reproductive harm) must be identified on all labels, regardless of the format you choose.
- If your vendor is unaware of the chemicals and substances in the products, then third-party testing should be done to determine the chemical(s) and health risks associated with the chemicals. Under the new labeling requirements, you need to identify only one chemical and its associated exposure health risk.
- Once you’ve determined the format and the contents of your warning label, then you should have the labels prepared by your vendor’s art department and have the label reviewed by a test lab for compliance.
- Don’t forget to include the warnings for your products on your website and catalogs; the warnings for your webpage and catalog should match the one applied to the product.
- Always inform your customers and train your sales and customer service staff on your Prop 65 policies and procedures.
If your customer does not allow you to apply Prop 65 warnings, then you have two choices:
1. You can test all your products to verify Prop 65 compliance without labeling; any products found with chemicals in excess of the Prop 65 limits for exposure must be reformulated to eliminate or substantially reduce those chemicals to avoid exposure violations. If the product cannot be reformulated or you cannot find another vendor to supply a compliant product, then you may need to eliminate the product altogether.
2. If you reformulate the product, then you should always retest to ensure that the product will comply without a warning.
- If the retesting passes, then the product should be reasonably compliant for sale or distribution in California; always save all technical documents such as product spec sheets, bills of materials, and test reports.
- If the retesting fails, then your most obvious choices are:
- Pull the product and don’t source it at all.
- Source the item but prepare to assume the risks and costs of litigation and penalties if the product gets into the hands of someone looking to expose the product’s safety issues.
- Put a warning label on the product
- Reformulate the product and retest it
- Find a different vendor for the item.
More Tips To Manage Prop 65
Here are a few helpful tips to reduce your product risks:
- One of the first rules in responsible sourcing is to know your vendor. Does your supplier or factory have the requisite safeguards and best practices in place to source and test compliant raw materials? If you don’t know, then do some due diligence on your vendor or hire a third-party inspection or auditing firm such as Asia Inspection to review the vendor’s processes;
- Another rule is to know your product. This means you must find out from your source what is in the product (i.e., the components and the materials used to make it) and whether the product contains any of the 900-plus chemicals listed by OEHHA. Trusting your vendor is key, but always test the product for compliance with all applicable federal and state laws and regulations (including Prop 65);
- You don’t need to—nor should you—test for all 900-plus Prop 65-listed chemicals. First, the cost of testing for more than a handful of chemicals or substances would break the bank for all of us. Secondly, it is always smart to find out what listed chemicals are typically found in the product you are sourcing (as evidenced by the latest Prop 65 violation notices, settlements, consent decrees and judgments). Recently, the most popular substances and chemicals have been heavy metals (such as lead and cadmium) and phthalates (such as DEHP and DINP). So, if you can properly manage the raw materials that go into your products, and have the usual suspects, such as lead and phthalates, tested, you’ll likely minimize your greatest chances of being caught with a Prop 65 violation.
Use Your Resources
Every company is different, and some may not have a lot of internal resources or people to manage product compliance tasks. But, unfortunately, laws and regulations such as CPSIA and California Prop 65 are likely not going away. Our industry will continue to be challenged by these regulations. Luckily, PPAI and its Product Responsibility Action Group have created, and continue to create, excellent resources such as webinars, best practice guides and the annual Product Responsibility Summit to help you navigate the tricky and bumpy road of responsible sourcing.
PPAI Product Responsibility Summit 2018
The PPAI Product Responsibility Summit offers two full days of education focused on the most pressing business implications, challenges and opportunities associated with compliance.
September 16-18, 2018, Alexandria, Virginia
Find details and register: ppai.org/prs
PPAI Prop 65 & State Regulations Presentation https://onlineeducation. ppai.org/products/prop- 65-and-state-regulations
PPAI Prop 65 Best Practice Guide for New Labeling Requirements http://ppai.org/media/1814/pr-bp-proposition-65.pdf
PPAI Responsible Sourcing FAQs http://ppai.org/corporate-responsibility/product-responsibility/product-responsibility-faqs/
OEHHA Webpages https://oehha.ca.gov/proposition-65
and https://www. p65warnings.ca.gov/
Leeton Lee has been a consumer products safety expert for 25 years, starting as in-house legal counsel at The Walt Disney Company where, for seven years, he helped establish Disney’s highly respected Corporate Product Integrity department. After Disney, he served in various general counsel positions and has created and managed product compliance departments for other leading marketing and promotional products companies. Lee serves as a product safety consultant to the promotional products industry through his company ComplyBox, and is chair of PPAI’s Product Responsibility Action Group (PRAG). He holds a bachelor’s degree in business from Pepperdine University, and a law degree from Loyola Law School-Los Angeles.