New Proposition 65 Warning Regulations
New Proposition 65 Warning Regulations
California’s Proposition 65 applies to any product sold in, or sold into the State, and to any location in the State, that can expose people to any of the roughly 900 chemicals that California has found to pose an increased risk for the development of cancer or reproductive harm. The laws apply not just to companies based in California, but also to any company whose products end up being sold to consumers in California.
Any product that contains any of the listed chemicals must provide a warning alerting the customer of the possible exposure to hazardous chemicals. There is standard warning language companies can use—a so-called “safe harbor” warning. A company that distributes an offending product which does not include a warning is subject to civil penalties of up to $2,500 per violation, per day. These penalties can be sought by governmental attorneys or, as is more frequently the case, through private action.
While Proposition 65 has been in existence for more than 30 years, on August 30, 2018 new and more stringent regulations went into effect. The new warning requirements are product-type, location-type, and even chemical-type specific. As such, even companies that had implemented a Proposition 65 warning procedure in the past will have to substantially revise those warnings to remain in compliance.
Executive Summary
While the new requirements vary based upon the product and chemical at issue, every company doing business in California, or whose products are eventually sold in California (even through third parties), should be aware that:
§ The new regulations include changes for the safe harbor warnings for both product-based exposures and environmental-based exposures.
§ The new regulations require that warnings specifically identify at least one chemical (sometimes more) and the specific hazard (i.e., cancer or reproductive harm) related to the exposure.
§ Old safe harbor warning language must be updated to meet the new requirements.
§ For sales made online, the safe harbor warning must be provided to the customer prior to purchase.
§ If companies sell products through catalogs, the catalogs should include the safe harbor warnings.
§ In some instances, manufacturers and distributors can pass the warning obligations onto retailers.
§ The wave of Proposition 65 litigation has continued with roughly 200 new 60-day notices filed each month.
New Proposition 65 Warning Regulations
Product-Based Requirements 4
General Safe Harbor Warnings for Consumer Products 4
Ambiguity Regarding Use-and-Care Guides and Manuals 5
Internet Sales 6
Product-Specific Warning Regulations 7
Food 7
Alcoholic Beverages 7
Furniture 8
Passenger Vehicles, Trucks, Vans and Off-Road Vehicles 8
Non-Passenger Diesel Engine Exhaust 9
Recreational Vessels 9
Wood Dust 9
Retailer Liability 10
Environmental Exposure Warnings 11
General Environmental Exposure Warnings 11
Location-Specific Warnings 12
Amusement Parks 12
Dental Offices 12
Designated Smoking Areas 12
Enclosed Parking Facilities 13
Restaurants 13
Service Stations and Vehicle Repair Facilities 14
Petroleum-Based Environmental Exposure 14
Hotels 15
Residential Rental Properties 16
Non-English Language Warnings 17
Conclusion 17
Contacts 18
About Clark Hill 19
Table of Contents
New Proposition 65 Warning Regulations 4
Single Chemical
Where the product contains a single chemical that
causes cancer, reproductive harm or both, the labels are:
WARNING: This product can expose you to
[name of chemical], a chemical known to the State of
California to cause cancer. For more information go to
www.P65Warnings.ca.gov
WARNING: This product can expose you to [name
of chemical], a chemical known to the State of California
to cause birth defects or other reproductive harm. For
more information go to www.P65Warnings.ca.gov
WARNING: This product can expose you to
[name of chemical], a chemical known to the State
of California to cause cancer and birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov
Product-Based RequirementsGeneral Safe Harbor Warnings for Consumer Products
Proposition 65 creates a general safe harbor warning, a default warning that applies where an identified chemical
or toxicant exists but the product is not covered by one of the product-specific warnings. The new warning
requirements for consumer products generally include: 1) an icon, 2) specific language and 3) a website address.
Which warning label is required depends on the number of chemicals implicated and the different end-points (i.e.,
cancer and/or birth defects).
The new regulations impact both product-based exposures and environmental-based exposures.
This paper separates the two areas and discusses each in turn.
Multiple Chemicals
If there are two or more chemicals with different
hazards (i.e., cancer and birth defects), at least one
chemical has to be identified for each end-point. Thus,
for exposure to multiple chemicals with multiple end-
points the labels are:
WARNING: This product can expose you to
chemicals including [name of one or more chemical
or chemicals], which is [are] known to the State of
California to cause cancer and [name of one or more
chemical or chemicals] which is [are] known to the
State of California to cause birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov
WARNING: This product can expose you to
chemicals including [name of one or more chemical
or chemicals], which is [are] known to the State of
California to cause cancer and birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov
New Proposition 65 Warning Regulations 5
On the other hand, where there are multiple chemicals
that all lead to a single hazard (i.e., cancer), the warning
only has to list one of the chemicals. In that case, the
warning labels are:
WARNING: This product can expose you to
chemicals including [name of one or more chemical
or chemicals], which is [are] known to the State of
California to cause cancer. For more information go to
www.P65Warnings.ca.gov
WARNING: This product can expose you to
chemicals including [name of one or more chemical or
chemicals], which is [are] known to the State of California
to cause birth defects or other reproductive harm. For
more information go to www.P65Warnings.ca.gov
The new regulations also permit “short-form” warnings
to be used on consumer products. While these
warnings allow the company to avoid identifying a
particular chemical, they must be placed on the product
or product label itself. The short-form warnings are:
WARNING: Cancer - www.P65Warnings.ca.gov
WARNING: Reproductive Harm -
www.P65Warnings.ca.gov
WARNING: Cancer and Reproductive Harm -
www.P65Warnings.ca.gov
The short-form warning must be in a font “no smaller
than the largest type size used for other consumer
information on the product” and in no case smaller
than 6-point type.
Ambiguity Regarding Use-and-Care Guides and Manuals
The previous regulations permitted warnings to be
placed in manuals or in use-and-care guides. Under
the new changes this all becomes a little murky. The
original changes set to go into effect repealed the
ability to provide warnings in use-and-care guides. But
in December 2017, the changes were further updated
which made this issue unclear. Following updated
changes, there is now an apparent conflict between the
terms “label” and “labeling.” The term “label” requires
warnings to be printed or affixed to the container of a
product while “labeling” includes items such as package
inserts. This leads to ambiguity regarding whether
manufacturers can continue to provide warnings
in use-and-care guides as opposed to on the actual
packaging or shelf tags. The Office of Environmental
Health Hazard Assessment [OEHHA] has taken the
position that warnings in use-and-care guides are not
sufficient.
Because of this ambiguity, manufacturers should
consider providing warnings in at least one of the
following ways, in addition to any warning in the
product manual or use-and-care guide:
§ A product-specific warning on a posted sign, shelf tag
or shelf sign at each point of display of the product;
§ A product-specific warning via electronic device
or process provided automatically prior to or
during purchase;
§ A warning on the label;
§ A short-form warning located on the label.
New Proposition 65 Warning Regulations 6
Internet Sales
The new regulations regarding internet sales seem
particularly important as they impose significant
new requirements. Under the new regulations the
Proposition 65 warning must be provided to consumers
prior to or during purchase (under the previous
regulations the warning was only required prior to
“exposure”). In order to comply with this requirement,
the warning has to be on the product display page, in
a hyperlink using the word “WARNING” on the product
display page, or by otherwise prominently displaying
the warning to the purchaser prior to completing the
purchase. A warning is not prominently displayed if the
consumer has to search for it in the general content of
the website.
One method some companies use for internet sales is
to link the potential warning to the purchaser’s zip code
for shipping. When a California zip code is entered, the
warning is triggered. But, if a non-California zip code is
entered the warning is not.1
The new internet sales regulations are a distinct
and important problem for manufacturers who sell
to distributors in other states who then—if not told
otherwise—sell via the internet into California.
1 Indeed, early-2019 saw the first series of claims based solely on a failure
to warn online. It is likely that such claims will continue, and increase, over
the coming year.
New Proposition 65 Warning Regulations 7
Food:
As with the general consumer product warning, the
food-based language depends on the chemical(s)
implicated and the end-point(s). So for example, where
there is a listed carcinogen, the warning language is:
WARNING: Consuming this product can expose
you to chemicals including [name of one or more
chemicals], which is [are] known to the State of
California to cause cancer. For more information go
to www.P65Warnings.ca.gov/food
And where there is exposure to a listed reproductive
toxicant, the warning language is:
WARNING: Consuming this product can expose
you to chemicals including [name of one or
more chemicals], which is [are] known to the
State of California to cause birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov/food
As with the general product warning, a different
warning is provided where there are multiple
chemicals/toxicants that cause multiple end-points or
where a single chemical causes multiple end-points.
The new regulations do not require any specific
methods of transmitting the food warning other than
the requirement that the warning be in a box (if on a
label) and the other general warning requirements are
followed.
Product-Specific Warning Regulations
Alcoholic Beverages:
For alcoholic beverages, the warning content is:
WARNING: Drinking distilled spirits, beer, coolers,
wine and other alcoholic beverages may increase
cancer risk, and, during pregnancy can cause birth
defects. For more information go to
www.P65Warnings.ca.gov/alcohol
Unlike with the food warnings, the new regulations
include very specific provisions regarding the method in
which this warning is transmitted. The warning must be
transmitted in at least one of the following four ways:
§ An 8½ by 11 inch sign in no smaller than 22-point
type, placed at eye level so it is readable and
conspicuous to customers as they enter the area or
areas where alcoholic beverages are served.
§ A notice or sign at least 5 by 5 inches, with at least
20-point font enclosed in a box, at each retail point of
sale or display so as to assure that it is readable and
conspicuous.
§ For beverages provided for consumption on premise,
whether served by “food or beverage persons” or
sold over-the-counter, the warning must appear on
a menu or list identifying the alcohol sold. If there is
no such list, then on the general food and beverages
menu or list.
§ For beverages sold or distributed through package
delivery services, the warning must be on or in the
shipping container or delivery package, in font no
smaller than largest type used for other consumer
information (and in no case no less than 8-point font),
and readable and conspicuous to the recipient prior
to consumption.
In addition to the general consumer product warnings,
the new regulations contain numerous product-
specific warnings. The products covered are: food,
alcoholic beverages, furniture products, passenger
and off-road vehicles, non-passenger diesel engine
exhaust, recreational vessels, and wood dust.
The product-specific warnings are detailed below.
New Proposition 65 Warning Regulations 8
Obviously, depending on how the alcohol is sold or
distributed, not all of these methods of warning are
available or applicable. But in all cases, at least one
method must be used. Online alcohol sales have been
a target of Proposition 65 claims. At least one Plaintiff
firm has specifically targeted alcohol retailers for a
failure to provide online warnings. While there is some
question as to whether online warnings are required
for alcohol sales, it is something of which companies
should be aware.
Furniture
For furniture product exposures, the new regulation
requires both a “warning” and a separate “notice.”
The warning must be “on a label affixed to the furniture
product in the same manner as other consumer
information or warning materials…” and state:
WARNING: This product can expose you to
chemicals including [name of one or more chemicals
known to cause cancer, name of one or more chemicals
known to cause reproductive toxicity, or name of one
or more chemicals known to cause both cancer and
birth defects or other reproductive harm], which is
[are] known to the State of California to cause cancer
or birth defects or other reproductive harm. For more
information go to www.P65Warnings.ca.gov/furniture
In addition to the warning there must be a “notice,”
provided by sign or receipt, stating:
NOTICE: Some furniture products can expose you to
chemicals known to the State of California to cause
cancer and/or birth defects or other reproductive harm.
Please check product label for warning information.
The sign must be no smaller than 8½ by 11 inches and
placed at each public entrance or point of display with
the notice in at least 28-point type. If by receipt, the
notice language must be printed or stamped on the
receipt in at least 12-point type.
Passenger Vehicles, Trucks, Vans and Off-Road Vehicles2
For passenger vehicles, pickup trucks, vans, and off-
road vehicles, the regulation requires two specific
methods of providing warnings: 1) in the manual and
2) on a label or hang tag.
In the manual, the warning must be in at least 12-point
font enclosed in a box printed or affixed to the inside
or outside of the front or back cover or on the first
page of text.
For the label, the warning must be provided on a
non-permanent label attached to the front window on
the driver’s side, or if there is no driver’s side window,
on a hang tag hung from the rear view mirror, or if
there is also no rear view mirror, in another prominent
location.
In both cases, the required warning language is:
WARNING: Operating, servicing and maintaining
a passenger vehicle or off-road vehicle can expose
you to chemicals including engine exhaust, carbon
monoxide, phthalates, and lead, which are known to
the State of California to cause cancer and birth defects
or other reproductive harm. To minimize exposure,
avoid breathing exhaust, do not idle the engine except
as necessary, service your vehicle in a well-ventilated
area and wear gloves or wash your hands frequently
when servicing your vehicle. For more information go to
www.P65Warnings.ca.gov/passenger-vehicle
2 There is a proposed but not yet effective amendment that would require
specific warnings for exposures from rental cars.
New Proposition 65 Warning Regulations 9
Non-Passenger Diesel Engine Exhaust
As with passenger vehicles, the new regulations
require non-passenger (i.e., not passenger vehicles,
pickup trucks or vans) diesel engine exhaust exposure
warnings to appear in two locations. Like the passenger
vehicle warning, one of these warnings must appear in
the manual, in at least 12-point font enclosed in a box
printed or affixed to the inside or outside of the front
or back cover or on the first page of text. The other
warning must appear on a label permanently attached
to the product in an easily visible location or in an on-
screen display where the operator is provided other
warnings and instructions. The safe harbor warning
language for both warnings is:
WARNING: Breathing diesel engine exhaust
exposes you to chemicals known to the State of
California to cause cancer and birth defects or other
reproductive harm.
§ Always start and operate the engine in a well-
ventilated area.
§ If in an enclosed area, vent the exhaust to the
outside.
§ Do not modify or tamper with the exhaust system.
§ Do not idle the engine except as necessary.
For more information go to
www.P65Warnings.ca.gov/diesel
Recreational Vessels
For recreational vessels, the new regulations also require two methods of warnings. As with the passenger vehicles and diesel exhaust, one such warning must appear in 12-point font in a box printed or affixed to the inside or outside of the front or back cover or on the first page of text. The second warning must appear on a hang tag visible from the helm of the vessel printed in no smaller than 12-point type.
For both the warning language is:
WARNING: Operating, servicing and maintaining a recreational marine vessel can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, service your vessel in a well-ventilated area and wear gloves or wash your hands frequently when servicing this vessel. For more information go to www.P65Warnings.ca.gov/marine
Wood Dust
The regulations now require a warning for consumer product exposure to wood dust by drilling, sawing, sanding or machining raw wood products (“wood products” in defined in the regulations). The warning must be given in one, or both, of the following methods:
§ A warning displayed at point of sale of the raw wood product in a manner likely to be seen by the purchaser on a sign no smaller than 8½ by 11 inches and printed in at least 20-point type.
§ Where the product is sold in bulk form, the warning may be provided on the invoice or receipt in at least 12-point type.
The safe harbor warning language is:
WARNING: Drilling, sawing, sanding or machining wood products can expose you to wood dust, a substance known to the State of California to cause cancer. Avoid inhaling wood dust or use a dust mask or other safeguards for personal protection. For more information go to www.P65Warnings.ca.gov/wood
New Proposition 65 Warning Regulations 10
Proposition 65 requires the Office of Environmental
Health to minimize the burden on retail sellers to the
extent practicable. Thus, it is designed to send the
warning requirements as far up the distribution chain
as possible. However, the new regulations make it
possible for manufacturers and distributors to shift
that burden back down, onto retailers.
A retailer (with 10 or more employees) is responsible
for providing warnings when one of the following
exists:
1. The retailer (or affiliated entity) is selling the product
under a brand or trademark it owns or licenses;
2. The retailer has knowingly introduced a listed
chemical into the product, or knowingly caused it to
be created in the product;
3. The retailer has covered, obscured or altered a
warning label affixed to the product;
4. The retailer has received a notice and warning
materials from someone up the distribution
chain yet failed to conspicuously post or display
the warning;
5. The retailer has “actual knowledge” of the potential
consumer exposure and there is no source up the
distribution chain with ten or more employees and a
place of business, or an agent for service of process,
in California. (A retailer has “actual knowledge” if it
receives specific knowledge from a reliable source or
if it receives a sixty-day notice and continues to sell
the product five business days later.)
The fourth of these situations is of particular interest as
it demonstrates a shifting of the warning requirement
from the manufacturer to the retailer.
As seen above, a manufacturer or distributor can meet
its warning obligations by providing a warning on the
product label or labeling. Under the new regulations,
it can also meet its obligations “by providing a written
notice directly to the authorized agent for a retail
seller…” The written notice must (1) state that the
product may result in an exposure to one or more
of the listed chemicals; (2) include the exact name
or description of the product, or specific identifying
information, such as a UPC code or other identifying
designation; and (3) include all necessary warning
materials such as labels, labeling, shelf signs or
tags, and warning language for products sold on the
Internet. The manufacturer or distributor must also
receive written or electronic confirmation from the
retailer of receipt of the notice.
If the manufacturer, supplier or distributor properly
provides such notice, the retailer is then responsible for
the placement and maintenance of warning materials
—including for products sold over the internet. A failure
to do so would make the retailer liable (the fourth
situation above). Thus, once the manufacturer properly
provides notice, the duty to warn shifts to the retailer.
(A potential exception exists where the retailer has
less than 10 employees, since such a company is not
covered by Proposition 65.)3
Because providing notice can shift the obligation
downstream, the regulations impose a continuing
obligation on the manufacturer to both update and
renew these notices. If the warning is changed (e.g., a
new end-point or a new chemical), the manufacturer
must provide an additional notice within 90 days. But,
even if the warning is unchanged, the manufacturer
still must renew the warning to the retailer, with
confirmation of receipt, no later than February 28, 2019
and then annually thereafter.
Retailer Liability
3 As currently drafted, this only applies to notice to retailers. A presently
pending amendment would extend the ability of the manufacturer (or
others) to shift liability to intermediate companies in the same manner.
New Proposition 65 Warning Regulations 11
The general environmental exposure warnings are
similar to the consumer product warnings in that they
must now identify the specific carcinogen/toxin and
there are different warning requirements based upon
the chemical or toxin and the end-point.
The warning sign must clearly identify one or more
sources of exposure and contain the following warning:
For exposure to listed carcinogens:
WARNING: Entering this area can expose you to
chemicals known to the State of California to cause
cancer, including [name of one or more chemicals]
from [name one or more sources of exposure]. For
more information go to www.P65Warnings.ca.gov
For exposure to a single carcinogen:
WARNING: Entering this area can expose you to
[name of chemical] from [name one or more sources of
exposure]. [Name of chemical] is known to the State of
California to cause cancer. For more information go to
www.P65Warnings.ca.gov
For exposure to listed reproductive toxicants:
WARNING: Entering this area can expose you to
chemicals known to the State of California to cause
birth defects or other reproductive harm, including
[name of one or more chemicals] from [name one or
more sources of exposure]. For more information go to
www.P65Warnings.ca.gov
For exposure to a single reproductive toxicant:
WARNING: Entering this area can expose you to
[name of chemical] from [name one or more sources
Environmental Exposure WarningsEnvironmental warnings are already ubiquitous in California. They can be seen on most buildings, in parking
garages, and in other locations. The new regulations further control these general warnings—strengthening how
the warning is conveyed, what it must state, and requiring a whole host of location-specific warnings which must
be used at certain businesses or locations.
of exposure]. [Name of chemical] is known to the
State of California to cause birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov
For exposure to both carcinogens and reproductive
toxicants:
WARNING: Entering this area can expose you to
chemicals known to the State of California to cause
cancer and birth defects or other reproductive harm,
including [name of one or more listed carcinogens and
name of one or more listed reproductive toxicants]
from [name one or more sources of exposure]. For
more information go to www.P65Warnings.ca.gov
For exposure to a single chemical that is both a
carcinogen and a reproductive toxicant:
WARNING: Entering this area can expose you to
[named chemical] from [name one or more sources
of exposure]. [Name of chemical is known to the State
of California to cause cancer and birth defects or other
reproductive harm. For more information go to
www.P65Warnings.ca.gov
The new signage must be posted at all public entrances
to the affected area, in a conspicuous manner and in no
smaller than 72-point type.4
In addition the general environmental exposure
warnings, the new regulations contain numerous
“location-specific” warnings that must be provided.
General Environmental Exposure Warnings
4Warnings can still also be given via mailed/emailed/delivered notice to
occupants and/or publication in newspaper, but as posted signs are the
typical method of warning, they are discussed here.
New Proposition 65 Warning Regulations 12
Under the new regulations, certain types of business
and/or locations must provide specific warnings
rather than the general environmental warning. The
places covered are: amusement parks, dental offices,
designated smoking areas, enclosed parking facilities,
restaurants, service stations and vehicle repair facilities,
locations with exposure to petroleum products, hotels,
and residential rental properties.
For each of these warnings, the business must provide
the place-specific warning relevant to that business
as well as any other warning that is implicated. For
example, an amusement park must provide the
amusement park warning as well as the alcoholic
beverage warning (if it serves alcohol) and/or the
enclosed parking facility warning. Thus, for many
businesses, multiple warnings across products or
services lines are required.
Amusement Parks
The new regulations require that all amusement parks
(as defined in regulations) post a warning at each public
entrance in no smaller than 72-point type. The warning
for amusement parks is:
WARNING: Some areas or features in this
amusement park can expose you to chemicals
including [name of one or more chemicals], which
is [are] known to the State of California to cause cancer
or birth defects or other reproductive harm. For more
information, go to
www.P65Warnings.ca.gov/amusement-parks
Dental Offices
Dental offices now must post warnings regarding
exposure that occur during the delivery of dental
care including exposures from dental appliances. The
warnings must be posted on a notice or sign no smaller
than 5 by 5 inches and in no smaller than 20-point type
at all public points of entry. Alternatively the warning
can be provided in an informed consent form signed
by the patient prior to exposure. The new dental office
warning is:
WARNING: Certain dental procedures performed
in this office can expose you to chemicals known to the
State of California to cause cancer or birth defects or
other reproductive harm or both. Those procedures
can include sedation with nitrous oxide, root canals,
placement or removal of crowns, bridges, and
restorations such as mercury-containing fillings and use
of dental appliances. Consult your dental care provider
about these exposures and which materials are
appropriate for your treatment. Additional information
is also available at www.P65Warnings.ca.gov/dental
Designated Smoking Areas
Warnings now must be posted at the entrance to and
within any designated smoking area. The warning must
be posted on an 8½ by 11 inch sign, in at least 22-point
type, enclosed in a box. The designated warning
language is:
WARNING: Breathing the air in this smoking
area can expose you to chemicals including tobacco
smoke and nicotine, which are known to the State of
California to cause cancer and birth defects or other
reproductive harm. Do not stay in this area longer
than necessary. For more information go to www.
P65Warnings.ca.gov/smoking-areas
Location-Specific Warnings
New Proposition 65 Warning Regulations 13
Enclosed Parking Facilities
For parking garages, the warning must be on a 20 by
20 inch sign with at least 72-point type posted at each
public entrance and state:
WARNING: Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/parking
Restaurants
Restaurants are required to warn of exposure from
any chemical in food or beverage sold or served for
immediate consumption. The regulations provide three
alternate ways in which a restaurant can warn (it only
needs to warn in one way):
1. An 8½ by 11 inch sign in no smaller than 28-point type, placed so that it is readable and conspicuous to customers as they enter each public entrance to the restaurant or facility where food or beverages may be consumed.
2. A notice or sign at least 5 by 5 inches with font at least 20-point and text enclosed in a box, placed at each point of sale so as to assure that it is readable and conspicuous.
3. A warning on any menu or list describing food or non-alcoholic beverage offerings, in a type size no smaller than the largest type size used for the names of general menu items.
The safe harbor language for the warning is:
WARNING: Certain foods and beverages sold
or served here can expose you to chemicals including
acrylamide in many fried or baked foods, and mercury
in fish, which are known to the State of California
to cause cancer and birth defects or other reproductive
harm. For more information go to www.P65Warnings.
ca.gov/restaurant
It is important to note that if the restaurant also serves
alcoholic beverages, the alcoholic beverage warning
must also be provided.
New Proposition 65 Warning Regulations 14
Service Stations and Vehicle Repair Facilities
For service stations, warnings must be placed on each
gas pump as well as at every public entrance to a repair
facility (if one exists). The gas pump warning must be
printed in at least 22-point type, enclosed in a box and
posted on each gas pump.
WARNING: Breathing the air in this area or skin
contact with petroleum products can expose you to
chemicals including benzene, motor vehicle exhaust
and carbon monoxide, which are known to the State
of California to cause cancer and birth defects or
other reproductive harm. Do not stay in this area
longer than necessary. For more information go to
www.P65Warnings.ca.gov/service-station
The repair facility warning must be at least 32-point
type, enclosed in a box and posted at each public
entrance. The content (which is identical to the service
station warning except for the URL) is as follows:
WARNING: Breathing the air in this area or skin
contact with petroleum products can expose you to
chemicals including benzene, motor vehicle exhaust
and carbon monoxide, which are known to the State
of California to cause cancer and birth defects or
other reproductive harm. Do not stay in this area
longer than necessary. For more information go to
www.P65Warnings.ca.gov/vehicle-repair
Petroleum-Based Environmental Exposure
The warning requirements for possible environmental
exposure to petroleum products expands beyond
service stations and vehicle repair facilities. There
is a separate warning that must be provided for
environmental exposure to petroleum products in
locations other than service stations and vehicle repair
facilities—locations such as in and around refineries,
chemical plants, oil fields, and petroleum storage and
delivery areas, etc.
In these situations the safe harbor language is:
WARNING: Crude oil, gasoline, diesel fuel
and other petroleum products can expose you to
chemicals including toluene and benzene, which
are known to the State of California to cause cancer
and birth defects or other reproductive harm.
These exposures can occur in and around oil fields,
refineries, chemical plants, transport and storage
operations such as pipelines, marine terminals, tank
trucks and other facilities and equipment. For more
information go to
www.P65Warnings.ca.gov/petroleum
This warning should be provided in the same manner
the general environmental warning is provided—i.e.,
generally by posting a warning sign posted at all public
entrances in at least 72-point type.
New Proposition 65 Warning Regulations 15
Hotels
The new regulations also include specific warning
language for “hotels.” The term “hotel” is broadly
defined and encompasses a variety of properties such
as hotels, timeshares, vacation home rentals, bed and
breakfasts, and others. The hotel warning must be
provided by either (or both) of the following methods:
1) on a sign posted at the registration desk in no
smaller than 22-point type in a location likely to be seen
prior to completion of the registration; or 2) provided
electronically or in hard copy prior to or during the
registration/check-in process. As with a number of the
other categories provided above, the required warning
language varies based upon the number of end-points.
For exposure to listed carcinogens:
WARNING: [Name of one or more exposure
source(s)] in this establishment can expose you to
chemicals including [name of one or more chemicals]
which is [are] known to the State of California to cause
cancer. For additional information go to
www.P65Warnings.ca.gov/hotels
For exposure to a single carcinogen:
WARNING: [Name of one or more exposure
source(s)] in this establishment can expose you to
[name of chemical] which is known to the State of
California to cause cancer. For additional information
go to www.P65Warnings.ca.gov/hotels
For exposure to a single reproductive toxicant:
WARNING: [Name of one or more exposure
source(s)] in this establishment can expose you to
[name of chemical] which is known to the State
of California to cause birth defects or other
reproductive harm. For additional information go
to www.P65Warnings.ca.gov/hotels
For exposure to both listed carcinogens and
reproductive toxicants:
WARNING: [Name of one or more exposure
source(s)] in this establishment can expose you to
chemicals including [name of one or more chemicals]
which is [are] known to the State of California to cause
cancer and [name of one or more chemicals] which
is [are] known to the State of California to cause birth
defects or other reproductive harm. For additional
information go to www.P65Warnings.ca.gov/hotels
For exposure to a chemical that is listed as both a
carcinogen and a reproductive toxicant:
WARNING: [Name of one or more exposure
sources(s)] in this establishment can expose you to
[name of one or more chemicals] which is [are] known
to the State of California to cause cancer and birth
defects or other reproductive harm. For additional
information go to www.P65Warnings.ca.gov/hotels
New Proposition 65 Warning Regulations 16
Residential Rental Properties
A further amendment to the regulations have also
added specific warning language for “residential rental
properties.” This amendment becomes effective July
1, 2019. Residential rental properties include “an
apartment, house, duplex, triplex, condominium or
other dwelling that a landlord rents to a tenant to live
in, including common areas.” This does not include
“hotels” as defined in the previous section.
For such properties, the landlord must proactively
reach out to each known adult occupant, at the outset
and then on a yearly basis thereafter, and provide the
warning in hard copy, electronic form or in the lease/
rental agreement. Further, where the rental agreement
is in multiple languages, the Proposition 65 warning
must also be provided in those languages. Like the
other warnings, the required warning language varies
based upon the number of end-points.
For exposure to listed carcinogens:
WARNING: [Name of one or more exposure
sources(s)] on this property can expose you to
chemicals including [name of one or more chemicals]
which is [are] known to the State of California to cause
cancer. Talk to your landlord or the building owner
about how and when you could be exposed to these
chemicals in your building. For additional information
go to www.P65Warnings.ca.gov/apartments
For exposure to a single carcinogen:
WARNING: [Name of one or more exposure
source(s)] on this property can expose you to
[name of chemical] which is known to the State of
California to cause cancer. Talk to your landlord or
the building owner about how and when you could
be exposed to this chemical in your building. For
additional information go to www.P65Warnings.ca.gov/
apartments
For exposure to a single reproductive toxicant:
WARNING: [Name of one or more exposure
sources(s)] on this property can expose you to [name
of chemical] which is known to the State of California
to cause birth defects or other reproductive harm. Talk
to your landlord or the building owner about how and
when you could be exposed to this chemical in your
building. For additional information go to
www.P65Warnings.ca.gov/apartments
For exposure to both listed carcinogens and
reproductive toxicants:
WARNING: [Name of one or more exposure
sources(s)] on this property can expose you to
chemicals including [name of one or more chemicals]
which is [are] known to the State of California to cause
cancer and [name of one or more chemicals] which
is [are] known to the State of California to cause birth
defects or other reproductive harm. Talk to your
landlord or the building owner about how and when
you could be exposed to these chemicals in your
building. For additional information go to
www.P65Warnings.ca.gov/apartments
For exposure to a chemical that is listed as both a
carcinogen and a reproductive toxicant:
WARNING: [Name of one or more exposure
sources(s)] on this property can expose you to
chemicals including [name of one or more chemicals]
which is [are] known to the State of California to cause
cancer and birth defects or other reproductive harm.
Talk to your landlord or the building owner about how
and when you could be exposed to this chemical in
your building. For additional information go to
www.P65Warnings.ca.gov/apartments
New Proposition 65 Warning Regulations 17
Non-English Language Warnings There is no per se requirement that Proposition 65
warnings be provided in a language other than English.
But, under the new regulations, non-English warnings
may be required under certain circumstances. Broadly
speaking, if the company provides other pertinent
information in languages other than English, the
Proposition 65 warning must similarly be provided in
those other languages. So, if the company provides
labels, instructions, signage, product manuals, etc.
in Spanish, French, German, Chinese or any other
language, the Proposition 65 warning must also
be provided in English and those other languages
However, if the only information provided in the other
language is the company name or the product name, a
non-English warning is not required.
Conclusion
The changes to Proposition 65 modify almost every
section of the regulations—altering what warnings
need to be provided, the content of those warnings
and even how and when the warnings need to be
provided. These changes will have an enormous
impact on almost every company that sells a product
in, manufactures or distributes a product sold in
California, owns or manages a public space, or employs
persons in that state. Every company should review
and update their current warnings to comply with the
modifications of the regulations. Companies should
also review their products and/or locations and
determine if new warnings are required (as a result
of the new product/location-specific requirement)
and the new method in which such warnings must be
provided. Given the technical nature of these updates,
the assistance of attorneys experienced in Proposition
65 litigation is advisable.
New Proposition 65 Warning Regulations 18
If you have any questions or need assistance with any Proposition 65 matter, please contact Michael Sachs:
Or any other member of Clark Hill’s Proposition 65 team, including:
Michael Sachs
415.984.8530
Barbara Adams
415.984.8544
Steven Hoch
213.417.5158
Georges Haddad
415.984.8506
Kenneth von Schaumburg
202.772.0904
Christopher Foster
213.417.5130
New Proposition 65 Warning Regulations 19
About Clark Hill
Clark Hill is a multidisciplinary, national, law firm with more than 600 attorneys and professionals based in 25 offices across the United States, Dublin and Mexico City. Our attorneys are experienced in Proposition 65 litigation and have represented numerous industries and product lines. We are experienced in assisting companies in: 1) analyzing product lines for possible Proposition 65 concerns; 2) implementing labeling and warning policies; 3) responding to 60-day notice letters; 4) representing clients in pre-litigation matters; and 5) representing clients in active litigation.
The foregoing publication is intended solely for the education and information of the recipient. It is not intended to be
legal advice or a legal opinion and should not be regarded as either legal advice or a legal opinion.
This material may be deemed attorney advertising.
New Proposition 65 Warning Regulations
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