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Increase in Notices of Prop 65 Violations for Online Web Sales

The amendments to Proposition 65 warning regulations that went into effect on August 30, 2018 include more stringent warning requirements for products requiring warnings sold online via the internet. Since those regulatory amendments became effective, only a few enforcement actions based on violations of the new online and internet warning requirements have been initiated. But in recent weeks, more than 50 Notices of Violation or “Threatened Violation” under Prop 65 have been issued against various companies, mostly wine distributions and online retailers. Private enforcer John Devlin is behind the recent onslaught of Prop 65 notices and currently most of these notices concern online wine sales. The notices claim that these companies sold or distributed alcoholic beverages into California without Proposition 65 warnings on product pages or at the point of sale.

The new allegations against companies selling or distributing wine via the internet without providing the warnings mandated under Proposition 65 concern the following: (1) Ethyl alcohol in alcoholic beverages, which was listed as a reproductive toxicant on October 1, 1987; (2) Alcoholic beverages associated with alcohol abuse which was listed as a carcinogen on July 1, 1988; and (3) Alcoholic beverages added as a carcinogen on April 29, 2011.

Alcohol has been listed under Proposition 65 for decades. In response to a wave of what many believed to be frivolous “gotcha” enforcement actions against restaurant, bars and parking garages, in 2013 the California legislature amended Proposition 65 to allow for a “quick fix” of alleged violations involving measure that requires companies to perform the following within 14 days of receiving a notice of violation: correct the violation or cease sales; pay a civil penalty of $500; and notify the private party in writing that the violation has been addressed. OEHHA also has recognized the challenges of compliance with regulations for alcoholic beverages consumed on the premises, and related enforcement actions. The agency has issued guidance on the content and methods of transmission for alcohol warnings for alcohol consumed both on and off premises.

But the recent notices of violations do not concern alcohol consumed on or off premises. Rather, they relate to the alleged failure to provide warnings either prior to or during sales of the product when purchased online. The online warning requirement, applicable to consumer products generally, states that a warning must be provided by including either the warning or clearly marked hyperlink using the word WARNING on the display page or through some other means of prominent display before the purchaser completes the purchase. Violators cannot establish compliance with requirements for online sales though a “quick fix” method.

That said, the online warning requirement pertains to only to “safe harbor” warnings. Safe harbor warnings are those that comply with the requirements of the safe harbor warning regulations beginning at Title 27, California Code of Regulations, Sections 25601, et. seq. Compliance with the safe harbor warning regulations, although highly recommended, is not mandatory. A warning may still be “clear and reasonable” within the meaning of the statute even if it does not comply with the safe harbor regulations.

Proposition 65 requires businesses to provide clear and reasonable warnings prior to exposing individuals to chemicals on the Proposition 65 list. The law is enforced through civil lawsuits, which may be brought by specified public enforcers or by private persons in the public interest pursuant to the law’s citizen suit provision. The defending company must demonstrate that it complied with the requirement or that it is subject to an exemption. Those who are found to have violated that statute can be assessed a penalty of up to $2500 per day, and may be required to pay the plaintiff’s attorneys’ fees.

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 chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.