At the end of the month, companies will be required to apply the new Prop 65 regulations to their business practices. Failure to comply with these regulations by August 30, 2018, could subject businesses to potential liability, which could include penalties of up to $2,500 per day, per violation, as well as injunctive relief and attorney fees.
The new regulations continue to provide warnings that fall within the “safe harbor” provisions for warning content and methods for product exposures, environmental exposures, occupational exposures, and tailored “safe harbor” warnings and methods for specific types of products and facilities. However, the change lies within the revision for the required content and specify separate safe harbor warnings based on the types of listed chemicals, the number of listed chemicals, and the method of transmission.

Companies have the option to utilize two different types of warnings: a full warning or an abbreviated “short form” warning (if placed on the product). The short-form, on-product warning “must be in a type size no smaller than the largest type size used for other consumer information on the product.”

• “Can Expose”: Consumer product warnings must begin with “This product can expose you to . . .” This is a departure from the current warning regulations, which require safe harbor warnings to begin with “This product contains . . .”

• Pictogram: All safe harbor warnings except for food and dietary supplement exposures must contain a pictogram on the left side of the warning of an exclamation point encompassed by an equilateral triangle. Although the triangle must be printed in yellow, it may be printed in black-and-white only if the sign, label, or shelf tag for the product is not printed using the color yellow.

• URL: All safe harbor warnings must end with “For more information go to”

• Chemical Specification: If a warning is not provided on the product itself, such as on a shelf display or a store sign, a business must name at least one chemical for which the warning is being provided and specify whether that chemical is known to cause birth defects or reproductive harm, cancer, or both. If warning for one chemical that is a carcinogen and a separate chemical that is a reproductive toxicant, the warning must specify both chemicals. If warning for one chemical that is both a carcinogen and a reproductive toxicant, such as lead, the warning need only specify that chemical. This is a significant change. With the exception of warnings for alcohol, the prior safe harbor warnings do not require warnings to specify chemicals.

• Translation Requirements: Safe harbor warnings must be provided in English, and if a product sign, label, or shelf tag used to provide a warning also contains consumer information in a language other than English, the Proposition 65 warning also must be provided in that language.

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