Under the earlier interpretation, before August 2018, the required clear and reasonable notice operated by creating a “Safe-Harbor” warning along the lines of:
WARNING: This product contains a chemical known to the State of California to cause cancer.
WARNING: This product this product contains a chemical known to the State of California to cause birth Defects or other reproductive harm.
The new regulations which were adopted in August 2016 and effective as of August 31, 2018, lay out separate, specific warnings with: 1) a warning symbol, 2) mandatory font size comparable to the other text in a product label, 3) whether the chemical poses cancer risk, reproductive harm or both, 4) the name of the chemical, and 5) how the information must be transmitted to the consumer. For example, the new safe-harbor warning for exposure to a chemical listed as both a carcinogen and a reproductive toxin has to state:
Implicit in this is the requirement that companies review or test for the listed chemicals contain in their products, including sub-components form other suppliers, solvents and lubricants used in manufacturing and even the packaging used for the product. Adding these warnings to products generally risks scaring off customers in other States and listing one or more chemicals does not prevent a lawsuit for another chemical present in the product. There is an alternative “safe-harbor” language for warnings placed directly on a product which shortens the warning to:
However, Using the on-product warning requires that the type size be no smaller than the largest type size used for other consumer information on the product with a minimum 6-point font, and, if the color yellow is present on the label then the triangle symbol must be yellow as well.
Multiple Languages means multiple Language Prop 65 Warnings
If a product has multiple languages on the box or instructions where the Prop 65 Warning appears, the Warnings must also be in those same languages. For example, the product information on the packaging includes English, Spanish and French, then the Prop 65 Warnings must also be in English, Spanish and French. However, if the product website only has English then the website Warning need only be in English.
Method of Transmission of Prop 65 Warnings
The Method of Transmission of the warnings now requires safe-harbor warnings on the product display page either using a Hyperlink “WARNING” or otherwise prominently displaying the warning to the prospective purchaser. Companies can no longer rely on a small and uninformative link at the bottom of a catalog or web page. Warnings that require the customer to search for the warning are not considered prominently displayed.
The new regulations have also shifted the burden from retailers to manufacturers and distributors to ensure that the warnings are on the products and the means of advertisements (transmission of warning to the consumer). If the manufacturer has not labeled the products, they must disclose that to the retailer so that a warning is added at the point of sale. In practice that will likely result in returns from the retailer to the manufacturer or distributor.