What is Proposition 65?
Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. These chemicals can be in the products that Californians purchase, in their homes or workplaces, or that are released into the environment. By requiring that this information be provided, Proposition 65 enables Californians to make informed decisions about their exposures to these chemicals.
For more details on Proposition 65, click here
Proposition 65 for eCommerce websites
Must warnings be provided for internet services?
For consumer product purchases made over the internet, if the business wishes to provide a “safe harbor” warning that is deemed to comply with Proposition 65, the business would have to provide warnings following the methods in Title 27, Cal. Code of Regs., Section 25602, subsections (a) and (b).2
Specifically, the business would have to provide a warning on or with the product via any one of the four methods for consumer products warnings in Section 25602, subsections (a)(1)-(4).
Under subsection (b), the business would also need to provide a warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the internet purchase.
For a website warning, if a label is used for a product warning, a business may opt to provide a hyperlink to the warning or a photograph of the warning label used on the product (See page 89 of the Final Statement of Reasons (FSOR) for these regulations). In addition, if the short-form warning described in Section 25603(b) is provided on the product label, the website warning may use the same warning content.
Must warnings be provided for catalog purchases?
To provide a “safe harbor” warning for catalog purchases, a warning would have to be provided on or with the product via any one of the four methods for consumer products in Section 25602, subsections (a)(1)-(4). Under Section 25602(c) warnings would also have to be provided in the catalog in a manner that clearly associates it with the item being purchased. If the short-form warning described in Section 25603 (b) is provided on the product label, the catalog warning may use the same content.
To know more about the internet and catalog warnings, click here
Who should provide an internet warning?
Consistent with the Act, OEHHA’s (Office of Environmental Health Hazard Assessment) new regulations place primary responsibility for providing warnings on product manufacturers, producers, packagers, importers, suppliers or distributors [Section 25600.2(a)].
The retail seller is responsible for placement and maintenance of the warning materials, including providing warnings for products sold over the internet that he/she receives from the product manufacturer, producer, packager, importer, supplier or distributor [Section 25600.2(d)].
For more details, click here
When Will the Changes Take Effect?
In August 2016, the Office of Administrative Law approved the new regulations for improved Proposition 65 warnings. Businesses can currently choose whether to provide the old warning or the new warning as part of the regulation’s two-year phase-in period. Beginning August 30, 2018, the old warning system will expire and businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 will use the new warning system.
For more details, click here
Remember, these new requirements go into full effect on August 30, 2018—make sure your business is prepared.
Read the frequently asked questions here.
This blog should not be construed in any way as legal opinion. We’re simply addressing what we believe merchants should address to evaluate and implement these changes regarding website and catalog content.
We have highlighted just a few of the key provisions in the Prop 65 amendments. Legal guidance should be sought to understand Proposition 65 and its impact on internet and catalog sales.