Changes to Proposition 65 Consumer Product Warnings

On April 1, 2020, California implemented changes to its consumer product warning requirements under its Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65. The changes clarify the responsibility of manufacturers, distributors, packagers, and importers (non-retail suppliers) to provide warnings for consumer products that may be sold in California, either at a retail outlet or online. Proposition 65 requires businesses with 10 or more employees to provide warning labels when selling consumer products which contain any of over 900 chemicals listed by California as carcinogens and reproductive toxins in concentrations that can be harmful.

Prior to the amendments, non-retail suppliers subject to Proposition 65 had to apply a warning label to the product or provide written notice of the warning requirement to the authorized agent of the retail seller of the products. Now, if businesses choose to send a written notice rather than apply a label, they can provide that notice to either the authorized agent for the business to whom they are selling the product or the authorized agent for the retail seller.

If a written notice is submitted, it must:

• State that the product may result in an exposure to one or more listed chemicals;

• Include the exact name or description of the product or specific identifying information for the product such as a Universal Product Code or other identifying designation;

• Include all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet; and

• Be renewed annually during the period in which the product is sold in California by a retail seller.

The recipient of the written notice must confirm receipt, either electronically or in writing.

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