Prop 65 Labeling. Norton Rose Fulbright US LLP November 16, 2017

Transcription

1 Prop 65 Labeling Norton Rose Fulbright US LLP November 16, 2017

2 Current Prop 65 Warning Regulation General requirements for clear and reasonable warnings Safe harbor warning methods and messages 2

3 Revised Prop 65 Warning Regulation Mandatory requirements for allocation of responsibility to retailers and manufacturers, including mandatory e-com warnings Safe harbor warning methods and messages Grandfathering of prior consent judgments (not private settlements) Effective Date August 30, 2018 Mandatory for products manufactured on or after that date Voluntary before that date 3

4 Allocation of Responsibility Manufacturer, producer, packager, importer or distributor of product is required to Affix label to product or Supply written notice to authorized agent for retail seller that states warning is required Include the exact name or description of the product, or specific identifying information, such as UPC Sends warning materials for brick and mortar and warning language for online sales Obtains confirmation of receipt from retailer. Allocation of responsibility can be changed by contract, so long as consumer receives the warning. 4

5 Allocation of responsibility Retail seller is responsible for providing warning under one of following conditions: Private label products Knowingly and intentionally introduced a listed chemical into the product, or causeda listed chemical to be created in the product Covered, obscured, or altered a warning Received warning information and materials and has sold product without providing warning Has actual knowledge of the potential exposure and there is no manufacturer, producer, packager, importer or distributor who: Is a person in the course of doing business ; or Has designated an agent for service of process in California, or has a place of business in California. 5

6 Proposed Safe Harbor Warning Methods Labeling No change in method In-store signage A product-specific warning provided on a shelf tag or on a shelf sign for the product at each point of display of the product. Catch-all A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the product, without requiring the purchaser to seek out the warning. Online Warnings Must be provided even if product is labeled with a warning! Must be displayed on product display page or with hyperlink that includes the word WARNING, or otherwise displayed prior to purchase. 6

7 Safe Harbor Warning Language On-label: WARNING: Cancer and Reproductive Harm - On sign/online: WARNING: 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, 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 more information go to Key differences from current regulation: Must use hyperlink to Must identify at least one specific listed chemical for each endpoint (cancer, reproductive toxicity) Can only use truncated warning online if the product is labeled with the truncated warning. 7

8 Existing Settlements Warnings in existing settlements are grandfathered in as clear and reasonable under the new regulation. Must be court-approved Limited to the parties to the settlement Does not apply to reformulation levels (the regulation governs only the content of warnings 8

9 Issues for Fishing Lures What do I do if I don t know what chemicals are in my lures? Can I stick a warning on just to be on the safe side? Can I rely upon my suppliers representations? Do I need to provide warnings for lead weights that are encapsulated? Do I need to give warnings for chemicals in packaging? What if my product has multilingual labeling? Do I have to print the triangle in yellow? What do I do if a retailer sells my equipment in bulk? How do I manage products sold through distributors to retailers in California? Do I need retailer permission to send warnings? How do I deal with products out in the stream of commerce? What if my customers don t provide the warnings? 9

10 A NORTON ROSE FULBRIGHT

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