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New Proposed Prop 65 Warning Label Regulations

March 9 2014

By Agricultural Law

The Office of Environmental Health Hazard Assessment (OEHHA) under the auspices of Governor Brown’s declaration in May 2013 (after a failed legislative effort)  that he would further reform Prop 65, last week OEHHA released the proposed regulations with respect to Prop 65 warnings. Regulations can be found here.  A workshop is scheduled for April 14, 2014. We would encourage all interested parties to appear and comment.

The legislative effort last year was stalemated by the struggle between the industry, environmental interests and the Prop 65 Plaintiff’s bar, which is not necessarily the same group.

 The new proposals have the potential to actually create more litigation, as to date the majority of the litigation has not been related to warning content.

Further the proposals seem to have more in common with the non-industry view of warnings.  There is some relief for small retailers, but they are not the major targets of  litigation.

OEHHA descibes the proposal as:

The proposal would establish 3-5 minimum required elements for warnings:

1. Use of the signal word “WARNING”;

2. Use of the word “expose” to be consistent with the language in the statute;

3.The standard (Globally Harmonized System) pictogram for toxic hazards (only for consumer products other than foods, occupational and environmental warnings);

4. Disclosure of the names of up to 12 commonly-known chemicals that require warnings, such as lead and mercury, in the text of the warning;

5. A link to a new OEHHA website to allow the public to access more information relating to the warning, including additional chemicals, routes of exposure, and if applicable, any actions that individuals could take to reduce or avoid the exposure.

 

As to food manufacturers rather then dealing with the hot potato issue with respect to “naturally occurring” the new regulations state:

(a) The warning message for food products shall be provided via one or more of the methods specified in 25607.3 and, except where warnings provided directly on the product’s labeling, shall include, at a minimum, all the following elements: (1) The word “WARNING” in all capital letters and bold print.

(2) For products that cause exposure to a listed carcinogen, the words “Consuming this product will expose you to a chemical known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.”

(3) For exposures to listed reproductive toxicants, the words “Consuming this product will expose you to a chemical known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”

(4) For exposures to chemicals listed as carcinogens and reproductive toxicants, the words “Consuming this product will expose you to a chemical [or chemicals] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”

(5) The name of the chemical or chemicals if listed in section 25605.

(b) Except where prohibited by federal law on-product food label warnings may be provided as specified below. The text of the message shall be enclosed in a box and shall include the name of the chemical or chemicals listed in section 25605 where a warning is required for such exposure.

(1) For products that cause exposure to a listed carcinogen: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Cancer Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov.

(2) For products that cause exposures to a listed reproductive toxicant: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Reproductive Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov.

(3) For products that cause exposures to both a listed carcinogen and a reproductive toxicant: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Cancer and Reproductive Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such  chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov. (c) Supplemental information may be provided in the warning in addition to the basic elements required in subsection (a), including, but not limited to the following: (1) The manner in which the chemical is formed, occurs in or is added to the food. (2) Information concerning other sources of exposure to the listed chemical. (3) The primary population of concern, such as children or pregnant women. (4) References to governmental information such as advice from the federal Food and Drug Administration. (5) In no case shall such additional information dilute or negate the warning provided pursuant to Health and Safety Code section 25249.6. (d) Where the Lead Agency has adopted a chemical, product or location-specific warning as provided in Section 25607 that address the exposure in question, the business may use that warning.

NOTE: Authority cited: Section 25249.12, Health and Safety Code. Reference: Sections 25249.6 and 25249.11, Health and Safety Code.