CA Prop 65

Cal EPA Office of Environmental Health Hazard Assessment 4
Proposition 65 Clear and Reasonable Warnings
Questions and Answers for Businesses Revised - August 2017
Q9: Can a product that is similar to one covered by a court-approved warning
use the court-approved warning instead of the new warning in the regulation?
The new regulations do not prohibit a business that is not a party to a settlement from
using warning methods and content incorporated into the settlement. However, if the
warning methods or content differ from those in the regulations, the business would not
be able to claim safe harbor protection. The business could still defend an enforcement
action by arguing such a warning is “clear and reasonable.”
Q10: Can a business replace the September 2008 warnings and provide the new
warnings immediately?
Yes, during the two-year phase-in period from August 30, 2016 to August 30, 2018, a
business can follow the safe harbor methods and content from either the September
2008 regulations or the new regulations (Section 25600(b)).
Responsibility to Provide Warnings
Q11: Who should provide a warning?
Consistent with the Act, OEHHA’s new regulations place primary responsibility for
providing warnings on product manufacturers, producers, packagers, importers,
suppliers or distributors. For consumer product exposures, businesses in the above
categories must either provide a warning on the product, or provide notice and warning
materials to “the authorized agent” for a retail seller and receive an acknowledgment
that the notice and materials were received. The retail seller is responsible for
placement and maintenance of the warning materials he/she receives from the product
manufacturer, producer, packager, importer, supplier or distributor. Businesses should
carefully review the new requirements (Section 25600.2).
Q12: Can retail sellers rely on new Section 25600.2(e) now?
No. Section 25600.2(e) of the new regulations does not become operative until August
30, 2018. The phase-in period for the new regulations allows a business to provide
warnings using the new safe harbor methods and content prior to the operative date of
August 30, 2018. However, Section 25600.2(e) is not operative until August 30, 2018.
Q13: If a company is a manufacturer or producer of a consumer product, but does
not sell it directly to retailers, how can it comply with the requirement to provide
warnings to retail sellers?
A consumer product manufacturer that does not sell directly to retailers has two options
for compliance: (1) Label the product with the required warning; or (2) Provide a warning
notice and the warning materials to the packager, importer, supplier or distributor via
their authorized agent. Manufacturers and others in the chain of commerce should take