ARE YOU THE LITTLE ENGINE THAT COULD RIDE OVER THE PROP 65 MOUNTAIN?
By Evan Locke, Principal, RSC Global Solutions, LLC 28 March 2018
Setting the Scene:
You’re a manufacturer of a consumer product and your supply chain is chugging along like the little engine that could. Then it stops to a halt! You realize ‘We have products already scheduled for production after August 30th!”.
What’s special with that specific date…the new amendment to Article 6 Clear and Reasonable Warning, of the California Safe Drinking Water and Toxic Enforcement Act of 1986 (aka Proposition 65) regulation will be operative on August 30, 2018!
Now you need to ask yourself …
Firstly, answer these three questions…
- Does our product give-off an odor or smell? = Inhalation Exposure
- Could our product be placed in the mouth? = Oral Exposure
- Does our product physically touch the skin? = Tactile Exposure
Then ask the following questions …
- Do we know what’s in the products we manufacture?
- Do we have a Bill of Materials (BOM) and/or Bill of Substances (BOS)?
- Do our products contain at least one of the 900 plus chemicals considered at or above the safe harbor levels, which include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity?
- Does there exist any materials/substances testing reports for chemicals?
- Has someone you have confidence with, that understands the requirements, reviewed the test report or relevant support information on ‘each’ product, component, material?
- What’s the date on the report?
- Which products use the exact same material?
- Have you or do you have a system, process or resource to cross reference this data?
- Can the system output an exception report to indicate which material may not have a report or if it’s out dated?
- Do we know what our obligations are with Prop 65?
- Have we been complying with Prop65 all along?
- Are we prepared to continue to be compliant with Prop 65 after August 30th?
- How confident are you with your suppliers?
- How confident are you with your labeling and notification obligations?
- Do we have a process and plan in place?
- Will the products be labeled correctly?
- Will your promotional, sales, marketing materials and e-commerce websites have the required and accurate notification and labeling statements prior to selling a product?
- Do we need help from a consultant or expert?
- Do you have a lawyer familiar with Prop65?
While the changes in law has been known for a while, it’s likely time has crept up and now it’s crunch time! Specifically, the labeling requirements have significantly changed and they’re going to have a dramatic effect on anyone selling products…especially via E-commerce.
Now don’t tell me you’re NOT selling product or do not have someone selling your products online, nor the product is NOT being sold into California.
The obligations along the supply chain are quite simple to follow and here’s your cheat sheet/takeaway!
TAKEAWAY: The most significant changes made by the new regulations is that Prop 65 warnings will now need to:
- Identify at least one Prop 65 chemical by name
- State that the product can “expose” the consumer to the chemical.
- Catalogs and websites shall include the same exact warnings
- Notification shall be provided to the ‘Authorized agent’ selling to the consumer AND have obtained confirmation of receipt in return
- Format the labeling according to the regulation! It’s now very specific!
There are some very helpful excerpts (italics) to help provide the crux of the changes. This information has been taken directly from the law itself and the guidance documents provided by Office of Environmental Health Hazard Assessment (OEHHA), along with supporting commentary.
The new regulations define: (§ 25600.1. Definitions.)
- (b) “Authorized agent” means the person or entity, including a monitored electronic mailbox or post office box, designated by a retail seller to receive notices from product manufacturers, producers, packagers, importers, suppliers, and distributors under this article.
- (c) “consumer product” as “any article, or component part thereof, including food, that is produced, distributed, or sold for the personal use, consumption or enjoyment of a consumer.”
- (d) “consumer product exposure” is defined as “an exposure that results from a person’s acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.”
- (l) “Retail seller” means a person or business that sells or otherwise provides consumer products directly to consumers by any means, including via the internet. For purposes of this article, a retail seller includes those functions of a business involved in the sale of consumer products, including foods, directly to consumers, even if the business or facility is primarily devoted to non-retail activities
WE SELL PRODUCT TO A DISTRIBUTOR OR COMPANY THAT GIVE’S PRODUCT AWAY
Q13: If a company is a manufacturer or producer of a consumer product, but does not sell it directly to retailers, how can it comply with the requirement to provide warnings to retail sellers?
A consumer product manufacturer that does not sell directly to retailers has two options for compliance:
- Label the product with the required warning; or
- Provide a warning notice and the warning materials to the packager, importer, supplier or distributor via their authorized agent.
Remember, whether or not the supplier of the component part or the finished product shall comply with Prop 65, they must assure, the person(s) providing the end product ultimately to the consumer has been notified a warning is required.
How is this accomplished? By any means possible yet you shall also assure to obtain a return reply/confirmation either electronically or in writing.
There is no reprieve or timeframe in the law for records keeping therefore consider it indefinitely.
WE GENERATE A CATALOG OF OUR PRODUCT OFFERING AND/OR THE PRODUCT IS SOLD ON THE INTERNET
If your catalog/brochure, etc. could be construed as a mechanism to communicate the product’s details to another business entity, it is advisable to include the respective Prop 65 warning.
With e-commerce internet sales, the law is even more clear. The complete warning must be provided as follows:
- On the product display page by displaying either the complete warning or a clearly marked hyperlink labeled “WARNING” that links to the complete warning,
The intent is to prominently communicate the warning to the purchaser prior to completing the actual transaction of purchase. Simply placing the warning on the page of a catalog or website page in a random location is NOT sufficient if the purchaser must search for it.
For catalog sales, the warning must be provided in a manner that clearly associates the warning with the item being sold.
With respect to both internet and catalog sales, if an on-product warning is provided with the product, the warning provided on the website or catalog may use the same truncated content as the on-product warning.
WHY DOES THE DUTY TO WARN FALL UPON ME?
The new regulations amend certain requirements relating to environmental and occupational exposures.
- 25600.2. Responsibility to Provide Consumer Product Exposure Warnings. [Operative August 30, 2018]
(a) Section 25249.11 of the Act requires the lead agency to minimize the burden on retail sellers of consumer products, … except where the retail seller itself is responsible for introducing a listed chemical into the product.
(b) The manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with this article either by providing a warning on the product label or labeling … or by providing a written notice directly to the authorized agent for a retail seller … which:
(1) States that the product may result in an exposure to one or more listed chemicals;
(2) Includes 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;
(3) Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet, …;
(4) Has been sent to the authorized agent for the retail seller, and the manufacturer, producer, packager, importer, supplier, or distributor has obtained confirmation electronically or in writing of receipt of the notice.
(c) If the manufacturer, producer, packager, importer, supplier, or distributor of a product is complying with this section by providing a written notice directly to the authorized agent for the retail seller:
(1) The notice must be renewed, and receipt of the renewed notice confirmed electronically or in writing by the retail seller’s authorized agent no later than February 28, 2019, then annually thereafter during the period in which the product is sold in California by the retail seller.
(d) The retail seller is responsible for the placement and maintenance of warning materials, including warnings for products sold over the internet, that the retail seller receives pursuant to subsections (b) and (c).
(e) The retail seller is responsible for providing the warning required by Section 25249.6 of the Act for a consumer product exposure only when one or more of the following circumstances exist:
(1) The retail seller is selling the product under a brand or trademark that is owned or licensed by the retail seller or an affiliated entity;
(2) The retail seller has knowingly introduced a listed chemical into the product, or knowingly caused a listed chemical to be created in the product;
(3) The retail seller has covered, obscured or altered a warning label that has been affixed to the product pursuant to subsection (b);
(4) The retail seller has received a notice and warning materials for the exposure pursuant to subsections (b) and (c) and the retail seller has sold the product without conspicuously posting or displaying the warning; or
(5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who:
(f) For purposes of subsection (e)(5), “actual knowledge” means specific knowledge of the consumer product exposure received by the retail seller from any reliable source …
Now you may decide after reading all of this…we’ll just take the risk of receiving a 60-day notice and deal with the bounty hunters later. That’s fine yet be aware the law is not going to change … at least not anytime in the near future. There is also a very high likelihood you’ll settle with a monetary cost to your business. Just reviewing the court-approved and out-of-court judgements will hopefully make your decision to be preventive and proactive complying with Prop 65 sooner than later.
Let RSC Global Solutions, LLC help support you to be compliant. We want to work to help assure your supply chain can get over the hill and continue your journey for growth and prosperity just as the little engine.
RSC Global Solutions, LLC will also put you in touch with the most relevant resources and tools available assuring you’re effectively and efficiently managing the process. These will most assuredly support many many other aspects of your business operations.
Note: The above has been provided for informational purposes only and should not be construed as legal advice. If you need legal advice, contact a lawyer.
- PROPOSITION 651 CLEAR AND REASONABLE WARNINGS QUESTIONS AND ANSWERS FOR BUSINESSES (August 2017)
- PROPOSITION 65 CLEAR AND REASONABLE WARNINGS QUESTIONS AND ANSWERS FOR BUSINESSES: INTERNET AND CATALOG WARNINGS (March 2018)
RSC Global Solutions, LLC