The following blog should not be construed in any way as legal opinion. F. Curtis Barry & Company is simply addressing what product merchants should address immediately as major amendments to California’s Prop 65 go into effect August 30, 2018. Each company should seek immediate, qualified legal assistance to evaluate and implement this regulation with regard to your online website and catalog content. Other selling channels use master catalogs, email promotions and product brochures that could be affected. They should be discussed with your legal counselor as well.
Brann & Isaacson has been an industry partner of F. Curtis Barry & Company for more than 20 years. Brann & Isaacson is a boutique law firm that represents over 100 large and small online and multichannel companies across the country.
To give readers a more complete understanding of Prop 65, we got permission to distribute a recent column Brann Law wrote, “Navigating The Fast Approaching Prop 65,” August 30, 2018 Amendments, By David W. Bertoni and Daniel A. Nuzzi – July, 2018.
Bertoni and Nuzzi will be conducting a live webinar for BLR to give retailers and direct marketers a heads–up on what they need to know about the amendments to Prop. 65. There is a $149 charge.
Live Webinar: Wednesday, July 25, 2018
2:00 p.m. to 3:00 p.m. Eastern / 11:00 a.m. to 12:00 p.m. Pacific
To join the webinar, register here.
Selected Sections From “Navigating The Fast Approaching Prop 65”, August 30, 2018 Amendments
Brann Law’s document is nine pages long. We have reproduced only a few selected sections to illustrate the onerous nature of CA Prop 65’s amendments.
“California's Proposition 65 (“Prop 65”) product safety warnings, once eye-catching and nerve-wracking, have become so ubiquitous that many would contend they have lost their intended effect. Many businesses, facing steep penalties for non-compliance, appear to have adopted the practice of slapping a Prop 65 warning label on every product — even if the product does not trigger Prop 65 warning requirements—just to be safe from bounty hunting, class action lawyers. Many Californians disregard Prop 65 warnings. However, change is brewing Aug 30, 2018. Amendments were passed in CA two years ago.” Page 1.
“Online and Catalog - New Labeling Requirements - Content Under the new regulation, safe-harbor warnings must identify at least one chemical that prompted the warning for each endpoint (carcinogenic or reproductive toxicity). Additionally, to qualify for the Prop 65 safe harbor, warning labels must feature: a triangular yellow warning symbol ; the signal word, “WARNING;” “can expose” instead of the old “consists of” language; varying type-size requirements; and the internet address for OEHHA’s Prop 65 warnings website, https://www.P65Warnings.ca.gov” Page 3.
Sample safe-harbor warnings examples are provided in the Brann & Isaacson column, page 3-5.
New Labeling Requirements
Online and Catalog Sales
"The new regulation requires websites and mail order catalogs to publish Prop 65 warnings. Businesses increasingly rely on online and catalog sales, and bounty hunters will likely stalk such advertisements to capitalize on non-compliance. For online sales, Prop 65 warnings must be placed in the immediate proximity of the affected item so it is clear which product the warning relates to when presented to the customer. To qualify for safe-harbor protection, a business must use either a standard-form or short-form warning, but a short-form warning cannot be used if the product itself does not bear a short-form warning. There are three ways to provide an online Prop 65 warning:
1) on the product page directly;
2) on the product page by hyperlink; or
3) by another means that occurs before or during purchase.
So, for example, a business could provide a pop-up warning that appears automatically when a California zip code is entered for a shipping address, which requires the customer to affirmatively indicate awareness. However, do not be fooled into thinking that restricting sales to non- California IP addresses is an effective way to limit your Prop 65 warning obligations. IP addresses are not a reliable indicator of a customer’s location. The new regulation provides less guidance for catalog sales. This is especially problematic because substantial catalog space, which comes at a premium, could be lost. The new regulation simply states that a warning must be “provided in the catalog in a manner that clearly associates it with the item being purchased.” Similar to online sales, a catalog may feature either a standard-form or short-form warning but may only use the short-form warning if the product itself also features the short-form warning. The new regulation does not indicate if a warning must be placed on every page where a product appears or if a warning is required where no price is advertised. These issues will likely be sorted out as case law develops. A business may cease providing catalogs to Californians to limit Prop 65 warning obligations. Of course, a bounty hunter could purchase an out-of-state catalog and bring it into California, but a successful enforcement action brought on this ground would be unlikely. Still, this may not be a risk worth taking. Regarding the language requirement, if online or catalog information is provided in a language other than English, the Prop 65 language must also be provided in that language. However, the on-product and online or catalog warnings do not necessarily need to match in this regard. For example, if a website features only the English language, the online Prop 65 warning would only need to be provided in English, although the on-product warning may feature multiple languages.” Page 5.
In F. Curtis Barry & Company’s opinion, as we stated earlier, businesses use many different selling channels and media such as master catalogs, email promotions and product brochures. Legal guidance should be sought to understand if all media and channels are included in the intended compliance changes.
Once again, these are selected sections and the entire document should be read and considered by competent legal assistance. F. Curtis Barry & Company thanks Brann & Isaacson for letting us reproduce these sections and allow readers to download the full document.
FOR MORE INFORMATION, PLEASE CONTACT:
David W. Bertoni, Esq. firstname.lastname@example.org; (207) 786-3566, ext. 110; or
Daniel A. Nuzzi, Esq. email@example.com; (207) 786-3566, ext. 141.