On January 31, 2020, California announced proposed changes to warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, by releasing a Notice of Proposed Rulemaking (“Proposal”). Among other things, the changes are intended to clarify on-line warning requirements (through a website or using a mobile phone app) and catalog warning requirements. The Proposal also includes revised requirements specific to the sale of alcoholic beverages through delivery services, reflecting the provisions of an enforcement action settlement currently being negotiated by the Attorney General.
Many of the revisions proposed by the Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for implementing regulations under Proposition 65, aim to ensure that consumers see warnings prior to or during the on-line purchase of a product—labeling on product packaging alone is not enough to meet requirements when purchases take place outside of a traditional retail location.
Proposed language would clarify the following requirements:
- Hyperlinks may be used to provide warnings on websites and through mobile apps, so long as both the hyperlink and the linked warning page meet requirements for formatting and content. Specifically, the hyperlink must include the word “WARNING” and must link to the full text of the applicable warning.
- Internet and catalog warning requirements are separate from and additional to tailored product warnings, including warnings provided through electronic devices or processes— tailored product warning requirements must be met regardless of the place or context of sale, and even if warnings are provided online or in a catalog.
- Alternative language requirements for consumer product exposures and for environmental exposures also apply to internet and catalog warnings. That is, when a website or catalog includes information about a product in a language other than English, the warning must also be provided in that language in addition to English.
Comments on the proposed changes may be submitted through the OEHHA web site through March 16, 2020.