Prop 65 Warning Requirements For Product Manufacturers And Distributors

For manufacturers and distributors of products that are sold in the State of California, the regulatory issue of ensuring compliance with California’s Proposition 65 is a serious matter that requires evaluation when designing your products packaging and warnings. Once (a) an assessment is made about Prop 65’s application (i.e. you determine that your product may reach California, includes chemicals identified on California’s Prop 65 list and requires a Prop 65 warning – See, “Proposition 65: Information that Product Manufacturers and Distributors Need to Know“) and (b) the appropriate Prop 65 warning prepared with legal counsel, the issue crises as to the method for employing the warning, i.e., location and size.

There are no steadfast rules. California law requires that Prop 65 warnings be (i) “clear and reasonable”, (ii) “be reasonably calculated..to make the warning message available to the individual prior to exposure, and (c) clearly communicate that the chemical in question “is known to the State of California to cause cancer, or birth defects, or other reproductive harm”. (see, Title 27, California Code of Regulations, Art 6 § 25601). When dealing with a Prop 65 warning related to “consumer product exposure”:

The warning may be provided by using one or more of the following methods singly or in combination:

• A warning that appears on a product’s label or other labeling.
• Identification of the product at the retail outlet in a manner which provides a warning. Identification may be through shelf labeling, signs, menus, or a combination thereof.
• The warnings provided pursuant to subparagraphs (a) and (b) shall be prominently placed upon a product’s label or other labeling or displayed at the retail outlet with such conspicuousness, as compared with other words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.
• A system of signs, public advertising identifying the system and toll-free information services, or any other system that provides clear and reasonable warnings. (See, Title 27, California Code of Regulations, Art 6 § 25603.1)

The designation and design of the appropriate Prop 65 warnings is critical to avoid “unnecessary” litigation and litigation risk.

If you are faced with a “Prop 65” Claim and would like to learn about your product labeling requirements and an effective defense, contact The Internicola Law Firm by filling our web form or call (800) 976-4904 to speak with product labeling attorney Charles N. Internicola.

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