California Publishes Q&A on New Prop 65 Warning Requirements

California to Require Hazard Warnings on Products Containing Twelve Common Chemicals

Anyone who has ever been to California is familiar with the ubiquitous Proposition 65 signs, “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.” Applying to any product sold in the state of California, Proposition 65 traces origins to a 1986 voter initiative. Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user. This problem has been recognized by California courts, advocates, and businesses. Proposed changes to the rule could require manufacturers to provide detailed information on chemicals in products sold in the state of California.

By the end of 2014, California’s Office of Environmental Health Hazard Assessment (OEHHA) is expected to formally propose changes to Proposition 65. OEHHA has released a pre-regulatory draft of the potential changes that are cause for concern. Based on the pre-regulatory draft, potential changes could include:

• Requiring manufacturers to provide a detailed report to OEHHA that includes the manufacturer’s contact information, anticipated route of exposure of the chemical, anticipated level of human exposure to the chemical, and steps a person can take to minimize or eliminate exposure;
• Eliminating safe harbor language, which would require the warning label language to say “can expose” instead of “chemical is present;”
• Identifying 12 chemicals that must be specifically named on any warning label. These chemicals are: acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1,4-dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke, and toluene; and
• Requiring the use of a new pictogram.

Changes to California Proposition 65: IPC has it Covered

In early January, the California Office of Environmental Health Hazard Assessment (OEHHA) released proposed changes to the Proposition 65 Regulations. The proposed changes are expected to increase the burden of compliance on all companies doing business in California.

The proposed regulations list 12 additional substances that companies are required to include on the warning label. One concern is that the list of these substances can change at any time which creates a high degree of uncertainty for industry. The 12 substances currently proposed are:

• Acrylamide
• Arsenic
• Benzene
• Cadmium
• Carbon monoxide
• Chlorinated Tris
• Formaldehyde
• Hexavalent Chromium
• Lead
• Mercury
• Methylene Chloride
• Phthalate(s)

California Publishes Q&A on New Prop 65 Warning Requirements

Last week, the California Office of Environmental Health Hazard Assessment (OEHHA) posted a new question and answer document on the new Proposition 65 Clear and Reasonable Warning regulations announced last year. The final rule, announced by OEHHA on September 2, 2016, will be effective on August 30, 2018.

The new rules include requirements for what constitutes a clear and reasonable warning under Proposition 65 and clarifies the warning responsibilities of retailers and manufacturers of consumer products. The new rules require that warning labels, for the first time, identify specific chemicals to which the consumer may be exposed.

California Adds Three Chemicals to the Prop 65 List

On October 27, 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) added N,N?dimethylformamide, 2?mercaptobenzothiazole, and tetrabromobisphenol A (TBBPA) to the list of chemicals known to the State of California to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).

Under Prop 65, companies are required to warn consumers of potential exposure to substances which cause cancer or reproductive harm. TBBPA is widely used as a flame retardant in printed circuit boards (PCBs). In PCBs TBBPA is used reactively, which means it is reacted into the resins and is not chemically available.

What is Prop 65?

Prop 65 is the California Safe Drinking Water and Toxic Enforcement Act of 1986. This initiative requires that the state of California publish a list of chemicals that the state has determined cause cancer or reproductive toxicity. The list of chemicals is monitored and updated annually.

In accordance with Prop 65, businesses that sell products in California are required to inform consumers, by issuing a “clear and reasonable” warning, if there are significant amounts of these chemicals present in their products. They must also issue a warning if any of these chemicals are released into the environment or discharged into sources of drinking water. Products that contain these chemicals in insignificant amounts or in locations from which consumers would not be exposed, such as the internal components of a product or areas that would not cause significant exposure, are exempt from the warning requirement.

Prop 65 is administered by the Office of Environmental Health Hazard Assessment (OEHHA) which is a part of the California Environmental Protection Agency (Cal/EPA). The regulation is enforced primarily by private personnel who are allowed to enforce in the public name. The California Attorney General’s office may also enforce Prop 65, but it only handles a small percentage of potential violations. More information about Prop 65 can be found on the OEHHA website.

Prop 65 Updated In 2018

The Prop 65 warning regulation was amended in August 2018. The amended requirements apply primarily to consumer products and address the appearance, form and content of the warnings that businesses are required to provide. The amended regulation further clarifies that the primary responsibility for providing Prop 65 warnings lies with manufacturers.

The amended labeling requirements include:

• The word “WARNING” which must appear in bold print and in all capital letters   
• A pictogram with a yellow equilateral triangle outlined in bold black with a black exclamation point in the center must be placed to the left of the word “WARNING”. The size of the pictogram cannot be smaller than the word “WARNING”. In some cases, the triangle can be in black and white.
• The language on the label must be changed from “This product contains” to “This product can expose you to…”
• The full chemical name of at least one chemical found in the product that is known to cause cancer or birth defects or other reproductive harm must be listed on the warning. If the product contains chemicals from both lists, a minimum of one chemical from each list must be identified.
• At the end of the warning, the following must be included: “For more information go to www.P65Warnings.ca.gov.”
• Businesses can also choose to use a short-form warning for warnings on products or on product packages. A short form warning cannot be used on signs or other types of warnings.
• A short form warning must include the above elements except that instead of using the language “This product can . . .” and identifying the chemical(s), the required language states only: “Cancer and Reproductive Harm – www.P65Warnings.ca.gov;” or “Cancer” or “Reproductive Harm” if only one endpoint is applicable.
• The font size of this short-form warning must be a minimum of 6 points, and it cannot be smaller than the largest size font used for other consumer information included on the label.
• If the label includes consumer information in other languages, such as instructions, ingredients or other warnings, the warning must be included in those languages as well.

The amended regulation applies to internet and catalog sales:

• The warning on the internet page must be prominently displayed on either the product page or a clearly-marked hyperlink on the product page, or at the checkout page to California purchasers prior to purchase
• Short-form warnings can be used on the internet
• The warning on a catalog page must be clearly associated with the specific product

Amended regulations for specific types of products and exposures:

• Specific warning requirements apply to food products, alcoholic beverages, restaurants, wood dust, furniture, enclosed parking facilities, hotels, petroleum products and other types of exposures.

CALIFORNIA PROPOSITION 65 WARNINGS:

 WARNING: Cables, Cable Assemblies, and Printed Circuit Boards can expose you to chemicals including lead and lead compounds which are 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

 WARNING: Lithium-ion Batteries and/or products that contain Lithium-ion Batteries can expose you to chemicals including cobalt lithium nickel oxide, and nickel, which are 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

 WARNING: Electrical cords, cables, product cords, wire assemblies, and carrying cases made with PVC can expose you to chemicals including DEHP, which are 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

WARNING: Plastic cases and product plastic housings made from polycarbonate or other plastics can expose you to chemicals including bisphenol A, which are 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

ABOUT CALIFORNIA PROPOSITION 65:

Many of the elements listed under Proposition 65 are commonly found in many products in the electronics industry. Many, such as lead could be found in solder on the circuit boards, cables, or other electronic assemblies. Bisphenol A (BPSA) could be found in our plastic housings, lenses, labels, adhesives, and DEHP (phthalates) could be found in PVC wire coatings of our cables, housings, carrying cases, and power cords.

More information is available at the Proposition 65 website.