Since the implementation of Proposition 65’s amended regulations on August 30, 2018, some practitioners expect to see an increase in litigation related to violations of the statute. But the types of lawsuits that Proposition 65 defendants are likely to face under the new regulations will almost certainly shift: whereas previous lawsuits typically focused on whether a company failed to provide “clear and reasonable” warnings on their products at all, lawsuits under the amended regulations are more likely to tackle issues related to the adequacy of the warnings, compliance with warning requirements by online sellers, and questions about which entities are legally obligated to provide Proposition 65 warnings. In addition, litigation may arise because a manufacturer or retailer was unfamiliar with, or not properly advised about, the new regulations.
More Detailed Safe Harbor Warning Guidelines
The old Proposition 65 safe harbor warning requirements were basic, one-size-fits-all rules that applied once it was determined that an exposure to a listed chemical was occurring at a level requiring a warning. The new rules have dramatically changed the landscape: safe harbor warnings require the use of a new symbol, new phrasing, the identification of the chemical being warned for (unless the “short form” warning is used), and the inclusion of the URL for the new California Proposition 65 website, www.P65Warnings.ca.gov.
Further, if a product is sold online or via catalogs, warnings must be provided on those websites and catalogs even if the product already is packaged with a warning. For internet retailers, warnings must be either be: (i) placed on the display page, or (ii) accessible via a hyperlink with the word WARNING visible on the display page, or (iii) displayed prior to completion of the purchase transaction. Put another way, Proposition 65 warnings cannot be buried in the website. The online warning requirement applies not only to manufacturers who may directly sell their consumer products online, but also to their downstream retailers, a requirement that has triggered thousands of manufacturer notifications to retailers regarding their obligation to post warnings.
Given the increased complexity of providing warnings, particularly for internet retailers who must ensure that the warning is visible or linked to the product, would-be-plaintiffs will likely have many more opportunities to identify violations of these rules, particularly in the immediate post-August 30, 2018 world.
Manufacturers and Authorized Agents Must Grapple with Sharing Responsibility for Warnings
The new requirements allow manufacturers who decline to place warnings on individual products to, instead, formally notify retailers of their own obligation to provide warnings. The formal notification must specify the affected products and provide warning materials such as stickers for retailers to affix to the products or signs for the retailers to post. Retailers typically resist any obligation to divert their own resources for such tasks, and many supply agreements explicitly place the burden to comply with Proposition 65 on suppliers. Similarly, manufacturers will likely encounter resistance if they choose to deliver labels to distributors with the intent that distributors pass them on to retailers. These are all sources of potential conflict among the various parties in supply chains, as they seek to fulfill their obligations under the amended regulations – and avoid enforcement actions.
Historically most companies charged with Proposition 65 violations settle rather than litigate their claims given the expense of a trial and the difficulty of proving that the level of exposure to a listed chemical is below the applicable warning level. It remains to be seen how companies will respond to alleged violations of these new, more onerous regulations.
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 Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].