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California Clarifies Requirements for Continuity of Proposition 65 Warnings in the Chain of Commerce

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January 16, 2020Jomarie GarciaBlog

On 14 January 2020 California’s Office of Environmental Health Hazard Assessment (OEHHA) announced that an amendment to the responsibility to provide a consumer product exposure warning under the Safe Drinking Water and Toxic Enforcement Act of 1986 (the Act or Proposition 65) was approved by the state’s Office of Administrative Law (OAL). The language of the Act will be revised effective 1 April 2020 to clarify how intermediate parties can satisfy their obligation to provide warning requirements when products are part of a chain of distribution.

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The major reason for the changes to the language of Proposition 65 was to create a clearer standard of requirements for businesses in the supply chain to comply with the warning requirements. The amendments make clear that businesses may comply with Proposition 65 requirements if they provide written notice of the warning requirement to the next business in line that is subject to Proposition 65. Sellers within the supply chain can also agree in writing to provide the notice in a different manner as long as the end result notice of the warning requirement is not affected. Further, the amendments provide businesses a course of action when a company has not designated an authorized agent to receive Proposition 65 materials. In this case the materials may be provided to the legal agent for that business.

Last, the amendment clarifies the term "actual knowledge" as the information received by a retail seller from any reliable source identifying the likelihood of a given product that can expose consumers to a Proposition 65 chemical.

These amendments will be codified under paragraphs (b), (c), (f), and (i) of Section 25600.2 of Title 27 of the California Code of Regulations (CCR).

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The amendment is intended to ensure continuity in the supply chain when a clear and reasonable warning is required for a Proposition 65 chemical so that warnings reach consumers before exposure to the chemical occurs. Otherwise warnings not given to an end consumer could trigger an enforcement action against the businesses that were given a warning notice and failed to pass it along to its customers. Thus businesses are encouraged to come into reasonable terms with their intermediate distributors in the supply chain to streamline their notice requirements for the end-user. Last, businesses should be aware that notices must be renewed annually during the period in which the product is sold by a retail seller in California.