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RJO Update:
Retail Industry Trade Regulation and Environmental Law
September 2016

New Proposition 65 Warning Regulations Adopted

By Renee D. Wasserman and Alecia E. Cotton

On August 30, 2016, the Office of Administrative Law (OAL) approved the adoption of amendments to Article 6, Clear and Reasonable Warnings, of the California Code of Regulations. This regulatory action repeals all the regulatory provisions of Title 27 of the California Code of Regulations, Article 6 (sections 25601 et seq.), except those added via an emergency rulemaking in April 2016 related to warnings for exposures to bisphenol A (BPA) in canned foods and beverages (Sections 25603.3(f) and (g)). This action will replace the repealed sections with a new regulation divided into two new Subarticles to Article 6. The new regulation provides for updated methods of transmission and revised content of warnings deemed to be compliant with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), as well as specified allocation of warning obligations.

Under the new regulation, a private contract between supplier/manufacturer and retailer allocating the burden of warning will supersede the requirements of new subsections (b), (c), (d) and (e) of section 25600.2 regarding who must warn. Retailers who are not able or willing to accommodate shelf or in-store warnings will need to specifically state in their vendor agreements that the supplier is to place the warning on the product if it requires a Proposition 65 warning. Without such specification, signed by the parties, the supplier/manufacturer may meet its Proposition 65 burden under the new regulation by sending notice to retailers of the required warning, along with the other elements set out in section 25600.2 (c). Suppliers should review their vendor agreements in advance of implementing action in accordance with the new regulation, as some retailers will have contracts in place regarding the placement of warnings on the product and some may not. 

The new regulation goes into effect in 24 months, on August 30, 2018.  In the interim, businesses may comply with the regulation in effect on August 30, 2016, or the provisions of the new regulation. The Office of Environmental Health Hazard Assessment (OEHHA) indicates that this will allow for a reasonable transition period for businesses to begin providing warnings under the new provisions.

The regulatory text is available for review here and the supporting rulemaking documents are available here.

For more information regarding compliance with the new regulation, contact Renee D. Wasserman (rwasserman@rjo.com), J. Robert Maxwell (bmaxwell@rjo.com) and Alecia Cotton (acotton@rjo.com). Biographies and other contact information are available at: Retail Industry Trade Regulation.

The content of this article is intended to provide a general guide to the subject matter and is not a substitute for legal advice.



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