Most people in the industry are aware of California’s Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Prop 65. Prop 65 requires warnings stating that a product contains a chemical that is known by the State of California to cause cancer, birth defects or other reproductive harm. Currently, warnings are not required to identify the chemical or provide specific information about that chemical but that is about to change.
New warning requirements – that go into effect in August 2018 – are intended to provide the consumer with more information about chemicals in products so they will better understand the risk associated with exposure and how to minimize that risk. The primary changes to the Prop 65 regulations state the new warnings must contain:
- The phrase “This product can expose you to…” and the name of the chemical that triggers the warning. The full name of the chemical must be on the warning.
- The corresponding risk of harm: cancer, birth defects or other reproductive harm.
- A triangle with yellow interior and an exclamation point inside the triangle. This triangle must be as large as the word WARNING.
- Directions to the Prop 65 warning website: P65warnings.ca.gov.
- Languages other than English if those languages are used on the product or its packaging.
Suppliers and distributors must use the long form warning as described unless the short form version of the warning is on the product. For details and examples of both the long and short form warning versions, see below.
Warnings must be provided to the consumer prior to or during purchase. Websites will be required to provide warnings on-site for internet sales – even if the product has a warning label. Catalogs are also required to provide warnings on product pages.
While the Prop 65 regulations can impose fines of up to $2,500 per day for violations, the primary risk is a Prop 65 lawsuit from a private enforcer. These cases can be very expensive to defend and the prospects for winning are very low. Everyone involved in the sale of a product that must have a warning has liability – primarily Suppliers and Distributors, but also End Users if they resell the product in California.
Providing compliant promotional products is essential when doing business in today’s competitive environment. Supplying quality, safe products increases buying confidence and protects brand equity through the supply chain.
Distributors should obtain a list of SKUs that must have a Prop 65 warning from each of their Suppliers. Be sure the list includes; SKUs, product names, colors, an example of the warning label for that item and where that Supplier intends to put each warning (on the product, on the packaging, exterior carton, package insert, packing slip, etc.)
Working with a supplier that values safety and quality will go a long way towards being ready for the new Prop 65 regulations. Protect your business by making sure products are Prop 65 compliant or will be affixed with a label that follows these updated guidelines.
For more information on Proposition 65, visit https://www.p65warnings.ca.gov/.
Suppliers and Distributors can use either the long form warning or the short form warning. The short form can only be used if it is on the product and does not have to include the name of the chemical triggering the warning requirement. The short form consists of:
- The warning triangle
- The word WARNING: followed by the risk (cancer and/or reproductive harm)
- The link to P65Warnings.ca.gov.
The type must be the same size that is used for other consumer information on the product, but in no event smaller than 6 point type.
Distributors should use the same warning that the Supplier uses. Here are several examples of long form and corresponding short form warnings:
Cancer, Birth Defects or other Reproductive Harm: DEHP
WARNING: This product can expose you to Di(2-ethylhexyl) phthalate (DEHP), which is known to the State of California to cause cancer, birth defects or other reproductive harm. For more information go to https://www.p65warnings.ca.gov/.
WARNING: Cancer and Reproductive Harm – https://www.p65warnings.ca.gov/.
WARNING: This product can expose you to Diisononyl phthalate (DINP), which is known to the State of California to cause cancer. For more information go to https://www.p65warnings.ca.gov/.
WARNING: Cancer – https://www.p65warnings.ca.gov/.
Birth Defects or other Reproductive Harm: DIDP
WARNING: This product can expose you to Di-isodecyl phthalate (DIDP), which is known to the State of California to cause birth defects or other reproductive harm. For more information go to https://www.p65warnings.ca.gov/.
WARNING: Reproductive Harm — https://www.p65warnings.ca.gov/.