California Grocers Association Proposition 65 New Clear and Reasonable Warning Regulation Webinar

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1 advancing your interests California Grocers Association Proposition 65 New Clear and Reasonable Warning Regulation Webinar January 25, 2018

2 Webinar Instructions z Can t hear the program? Click the phone request button on the Participants tab to request a dial-in phone number.

3 CGAEF Disclaimer z By hosting this Webinar, California Grocers Association (CGA) and the CGA Educational Foundation (CGAEF) are providing an opportunity for their members and attendees to learn general information that may be of interest to your company. The Webinar is designed to provide practical and useful information on the subject matter covered. However, CGA is not engaged in rendering legal, accounting or other professional advice or services. CGA/CGAEF does not review or approve the content of the webinar presented by guest speakers and others, and makes no representations or warranties about the accuracy or legality of any legal or other recommendations provided during the webinar. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

4 Upcoming Webinar: Wednesday, Feb 28 th at 10:00am Dealing with Unwanted Solicitors *Register online at CGAEF.org* 4

5 California Grocers Association Prop 65 Leila C. Bruderer, Counsel Downey Brand LLP Natural Resources Group Over 10 years experience as an environmental litigation and compliance attorney. Specializes in hazardous and solid waste law, Proposition 65 compliance and litigation. 5

6 New Prop 65 Warning Regulations New Safe Harbor Warning New Prop 65 Warning Regulations Manufacturer/Retailer Responsibility for Warnings Private Label Products Vendor/Retailer Contractual Agreement Internet Sales Warnings Food Warnings Latest 60-day Notices Against Grocers 6

7 New Safe Harbor Warning New warning regulations adopted by OEHHA August 30, 2016 Effective August 30, 2018 Changes warning content and methods of transmission 7

8 New Safe Harbor Warning New Content Requirements: WARNING Requirement to name one or more chemicals 8

9 New Safe Harbor Warning Example of Warning: WARNING This product can expose you to chemicals including lead which is known to the State of California to cause cancer, birth defects or other reproductive harm. For more information go to 9

10 New Safe Harbor Warning Methods of Transmission Posted sign Shelf tag Shelf sign On product label (short form or regular) Any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning. 10

11 New Safe Harbor Warning Short form on product label WARNING Cancer and Reproductive Harm www. P65Warnings.ca.gov 11

12 New Safe Harbor Warning Foreign languages signs and labels Label or packaging contains consumer information in a language other than English. Consumer information is warnings, directions, ingredient list, nutritional information Consumer information is not brand name, product name, company name, location of manufacture, or product advertising Signage in a language other than English. 12

13 Responsibility for Warnings Manufacturers have primary responsibility for warning. BUT, a manufacturer can shift responsibility to a retailer. 13

14 Responsibility for Warnings How can manufacturer shift responsibility to retail seller? Written notice sent to authorized agent for retail seller, which includes: Statement the product may result in an exposure to one or more Prop 65-listed chemicals Authorized agent for retail seller must confirm receipt of notice electronically or in writing Notice must be renewed annually (after first 6 month renewal on 2/28/2019) Exact name/description of product (UPC or other) Warning materials (labels, labeling, shelf signs or tags) including internet 14

15 Responsibility for Warnings Retailer responsible for warning under following circumstances: Private label products Retailer has actual knowledge and no manufacturer, producer, packager, importer, supplier, or distributor of the product who is: Person in the course of doing business Retailer introduced listed chemical into product Retailer altered warning label provided by manufacturer/supplier Has a designated agent for service of process in CA, or place of business in CA Actual knowledge includes where retailer receives notice retailer has 5 days to provide a warning. Manufacturer notice and warning materials 15

16 Vendor/Retailer Contractual Agreement New warning regulations expressly allows manufacturer and retailer to enter into an agreement allocating legal responsibility for the warning between them by contract in a manner different than specified in the regulations. Binds parties and supersedes Strategies for retailers in negotiations with manufacturers 16

17 Internet Sales On-product warning is not sufficient Can use short form if that is what appears on the product label Warning or clearly marked hyperlink on the product display page; or If only selling on-line, then no on-product warning is necessary. Prominently displaying the warning to the purchaser prior to completing the purchase. e.g., providing a pop-up warning as the consumer is proceeding with the purchase. 17

18 Internet Sales OEHHA Guidance on Internet Sales A business cannot place the warning symbol next to the product and use it as a reference for a full customer product warning provided elsewhere on the website. For the safe harbor warning to be effective, all of the warning language must be provided. 18

19 Internet Sales What about delivery programs? What about click & collect programs? Smart phone and tablet apps? 19

20 BPA Warnings Before December 30, 2017, emergency regulations provided for the following: Bisphenol A: (1) On-Product warning language - or - (2) Notify regulator/report online & provide notice to retailer with point of sale warning 20

21 BPA Warnings Bisphenol A: December 30, 2017-August 30, 2018: Old or new warning regulations August 30, 2018: New warning regulations 21

22 Food Warnings Food Products o o o Same warning methods as other consumer product warnings On product warning must be set off from other surrounding consumer information, and enclosed in a box. Example warning language: WARNING Consuming this product can expose you to chemical[s] including [name one or more chemicals] which is [are] known to the State of California to cause [cancer and/or birth defects or other reproductive harm]. For more information go to 22

23 Food Warnings Prepared Food Methods: 8 1/2 x 11 sign, 28-point font, readable and conspicuous at public entrance to area where food/beverages maybe consumed. 5 x 5 inch notice or sign, 20-point font at each point of sale, readable and conspicuous. Menu/list warning, type size no smaller than largest font size used on menu/list Content: 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 23

24 Recent 60-Day Notices Prop 65 Plaintiffs vs. Grocers Furfuryl Alcohol Acrylamide Lead 24

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26 Leila C. Bruderer Sacramento 621 Capitol Mall 18th Floor Sacramento, CA tel: (916) advancing your interests