New Prop 65 Amendments: Supply Chain Compliance Policies, Proposed Changes to Regulations, Industry Trends and Chemicals of Concern

Proposition 65 prohibits businesses from exposing California consumers to certain levels of chemicals identified by the state to cause cancer and/or reproductive harm without warning. The regulations specify "safe harbor" warning language that can be provided with a product to ensure compliance.

Prop. 65 underwent a major overhaul in 2018, and there have been further changes to the regulations. There have been proposed amendments to the short form warning that are in response to the "widespread use of short-form warnings in ways that were not intended and did not further the purposes of Proposition 65" and "numerous inquiries" about when the short-form warning could be used. The proposed amendments will only allow the use of short-form warnings in certain circumstances and most importantly will require identification of the specific chemical. Currently many businesses are using the short form label, regardless of the size of the label or the size or shape of the package.

The panel will discuss recent enforcement trends in certain products and industries, and chemicals of concern that are being highly targeted by noticing parties, including a renewed focus on BPA. This will include a discussion of warnings for alcoholic beverages sold over the internet or through a catalog.

Businesses within the supply chain must consider who must provide the warning and what that warning must be. The party in the best position to ensure that the warning is delivered in compliance with new Proposition 65 amendments are likely on the hook for failure to comply if the party selling or facilitating the sale to the consumer is alcohol delivery. In many instances, the product producer may have no control over the packaging or point of sale documentation for products delivered from a retailer to a consumer (e.g., those suppliers who are generally not permitted to ship their products directly to consumers). This will also include a discussion about how to deal with a business in the supply chain that is potentially exempt from Prop. 65 due to the number of employees.

Listen as our expert panel discusses these regulatory changes that create business issues and best practices for structuring supply agreements to comply with Proposition 65, critical guidance on new terms, risk-shifting measures, and drafting pitfalls.