The amended regulations for Proposition 65 (Prop 65) that go into effect on August 30, 2108 introduce significant changes for warnings on products containing listed chemicals – including, for the first time, products sold via the internet. Entities that sell products online or maintain websites that conduct sales to consumers in California may no longer be permitted to avail themselves of the safe harbor protections available currently under Prop 65. Online businesses should be prepared to follow the guidance issued by Office of Environmental Health Hazard Assessment (OEHHA) to ensure that their warnings fall within the safe harbor provisions.
Notably, online warnings by themselves are no longer a safe harbor method of providing Prop 65 warnings. Rather, warnings for online purchases are an additional requirement, and must be provided even if a product already is labeled with a warning or if another safe harbor method of transmission is used (see 27 Cal. Code of Regs. Section 25602(a)(1)-(4)).
Warnings Provided Before Completing a Purchase. Under the new regulation’s safe harbor provisions, businesses with internet sales must issue a safe harbor warning before the completion of the purchase. The warning may be provided by including either the warning or a clearly marked hyperlink (directing the customer to the warning) using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. Further, the warning must be provided in a way so that the consumer does not have to hunt through the website, clicking through multiple links, in order to find the warning.
Use of The Short-Form Warning. The new safe harbor regulations allow businesses to provide “short-form” warnings (see 27 Cal..Code of Regs. Section 25603(b)). Such warnings are allowed only on product labels; they are not allowed, for example, on point of display signage. However, if a product is labeled with a short-form warning, then the business can use the short-form warning text for its online warnings.
Warning Symbol Alone Does Not Satisfy Safe Harbor Requirement. Online sellers cannot use a warning symbol alone (consisting of a yellow triangle with a black exclamation point) to conform to the safe harbor provisions under the statute. The warning symbol on the product display page must be accompanied by content containing or referencing a warning. This means that an online seller must either provide the warning on the product page, or a hyperlink to the warning text, or a pop-up warning that appears once the buyer identifies himself as a resident of the state.
Internet Sellers’ Obligation to Provide Warnings to California Residents. Prop 65 mandates that warnings be provided when a person in California is exposed to a chemical that is listed on the Prop 65 list. There is no obligation to provide warnings to consumers in other states. When addressing product distribution, however, it is frequently infeasible to separate out products headed to California and apply warnings only to those – which means that product warnings end up being delivered to consumers nationally and even internationally. But for online warnings this problem can be addressed by providing the warning only after a consumer enters a California ship-to zip code prior to completion of the transaction.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at firstname.lastname@example.org.
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