What California’s Update to Prop 65 Means for Manufacturers

Recent changes to one of California’s consumer protection laws mean manufacturers will need to update their consumer warnings.

Passed in 1986, California’s Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, prohibits businesses from knowingly discharging certain chemicals into sources of drinking water and requires them to inform consumers about potential exposure to the chemicals. It now lists more than 800 substances known to cause cancer, birth defects or other reproductive harm, ranging from dyes and lead found in consumer products to alcoholic beverages.

According to California’s Office of Environmental Health Hazard Assessment (OEHHA), which administers the law, Proposition 65 has not only increased public awareness about toxins in products, allowing people to reduce their exposure, but it has also encouraged companies to remove toxins from some products.

The Business Impact

Other reviews have been less positive.

In a recent article, K&L Gates attorneys Edward P. Sangster, Daniel W. Fox and Caitlin C. Blanche call Proposition 65 an “undiminished irritant” to businesses. The attorneys say the law is a challenge for several reasons, including:

• The list of chemicals continues to grow and change.
• New chemical listings may require warnings for products that did not need them in the past.
• Companies may not know their products contain chemicals subject to the proposition’s requirements.

In addition, not all substances on the list are universally recognized as dangerous.

“Scientists classify all of these cancer-related substances at least as probable carcinogens, meaning that they might cause cancer in some people. But not all of them are known carcinogens (known to cause cancer) by groups and experts outside the state of California,” notes the American Cancer Society. “This means that not every compound labeled as a possible cancer-causing substance has been proven to the worldwide scientific community to actually cause cancer.”

Giving a Clear Warning

A manufacturer must provide “clear and reasonable” warnings when a product contains one of the chemicals listed by Proposition 65, unless the expected level of exposure poses no significant risk. These warnings include labels placed on a product, signs posted at a workplace or business, and notices published in a newspaper. If a chemical is added to the Proposition 65 list, businesses have a year to comply with the warning requirements.

On Aug. 30, changes to what those warnings must look like will take effect. While previous warnings needed only to state that a product contained a chemical that could cause cancer, birth defects or reproductive harm, the new warnings require more details:

• The word “warning” in all capital letters and in bold
• A graphic of a yellow triangle with a black outline and a black exclamation point inside
• The name of the chemical
• A link to the state’s Proposition 65 site, where consumers can find more information about routes of exposure for specific chemicals and learn ways to reduce or eliminate exposure
• A description that identifies whether the product contains only carcinogens, only reproductive toxins, both carcinogens and reproductive toxins, or a substance that is both a carcinogen and a reproductive toxin

Warnings must also now be included with items sold in catalogs or online. You can read more about warning requirements in an OEHHA document that provides a side-by-side comparison of the old regulations and the 2018 update.

Updates Will Provide Clarity

The new guidelines will help consumers and businesses make informed choices about the products they buy and use, says Damon Cassell, QSSP, a safety specialist with MSC.

“It’s so broad now that it’s refreshing to know that it’s going to be more specific so the consumer can make a better decision,” Cassell says, likening current warnings to “white noise.”

“In California, it seems like you see that label on everything,” he says. “I might as well just put it on the front door of my house.”

The details required for the new warnings could also help businesses better evaluate potential risks to their employees because the warnings will identify specific chemicals and information about possible exposure mechanisms.

For manufacturing and metalworking shops, the use of protective equipment—such as respirators, gloves and full-body suits—can help reduce exposure risk, even before a chemical is added to the list.

For manufacturers that need to issue Proposition 65 warnings for their products, Cassell recommends preparing to implement the new rules by making sure all chemical use information is up to date.

“Now’s the time to get compliant on your safety data sheets because you have to put it on your label anyway,” he says.