SEPTEMBER 12, 2016

SIDLEY UPDATE

Californias OEHHA Issues Final Proposition 65 Clear and

Reasonable Warning Regulations
What Occurred? On August 30, 2016, Californias Office of Environmental Health Hazard Assessment
(OEHHA) released final amendments to the Proposition 65 warning regulations.

Who is Affected? New warning standards could apply to any products sold in California or to any business
operations in California. Warning rules are changing for manufacturers, distributors and retailers. For the first
time, specific rules govern warnings for internet sales.

What is the Effective Date? The new warning standards apply to products manufactured on and after August
30, 2018. Between now and then, one may still use warnings which comply with the existing 2008 regulations.

Manufacturers and Others Must Provide Warnings. The new regulations impose primary responsibility for
providing warnings on product manufacturers, producers, packagers, importers, suppliers or distributors. They
must either affix warnings on the products or on product labels or provide notice and warning materials to the
authorized agent for a retailer. Detailed terms regulate how manufacturers may ask retailers to warn.

New Retailer Obligations to Provide Warnings. A retailer can be liable for failure to warn for the retailers
private label products or where the retailer:

1. Has received warning materials from an upstream party and failed to provide the warnings; or

2. Knowingly introduced a listed chemical to be created in or added to a product; or

3. Modified or obscured a products label warning; or

4. Has actual knowledge of the potential consumer exposure requiring the warning (and note such knowledge
can arise upon receipt of a 60 Day Notice of Intent to Sue Letter); and

5. If no upstream person in the product supply chain is subject to Proposition 65.

For internet sales, new rules require the internet seller to provide a warning prior to completion of check out.
There is some flexibility on how and when the warning is provided.

Is There New Warning Text for Specific Exposures? Yes. OEHHA developed specific warnings for exposures
to listed chemicals in foods, alcoholic beverages sold at retail stores, foods and alcoholic beverages sold at
restaurants, prescription drugs, emergency dental and medical care, non-emergency dental services, raw wood
products, furniture, diesel engines, vehicle purchases, recreational vessels, enclosed parking facilities,

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amusement parks, petroleum products, service station and vehicle repair facilities, and designated smoking
areas. OEHHA reports it is still developing unique text for hotels and apartment building warnings.

The Content And Transmission Of Safe Harbor Warnings Will Change Dramatically. Most persons are
familiar with the safe harbor warning text deemed clear and reasonable under the 2008 regulations:
WARNING: This product contains a chemical known to the State of California to cause cancer and birth
defects or other reproductive harm. Going forward, OEHHAs position on what constitutes a safe harbor
changes.

On-Product Warnings. The new regulations do not require identification of a specific chemical. There are three
versions of on-product label warnings. There is one for carcinogens, one for reproductive toxicants and one form
of warning for both carcinogens and reproductive toxicants:

WARNING: Cancer www.P65Warnings.ca.gov.

WARNING: Reproductive Harm www.P65Warnings.ca.gov.

WARNING: Cancer and Reproductive Harm www.P65Warnings.ca.gov.

Signs, Label and Internet Warnings. The new regulations also impose material changes to warning text on shelf
signs and on certain internet warnings. These warnings also can be used on the product. One key change is that
one or more listed chemicals must be identified by name. If the listed chemical identified by name is not both a
carcinogen and reproductive toxicant, then two chemicals must be listed by name (one for cancer and one for
reproductive harm) if the warning text includes both the cancer and birth defects or other reproductive harm
language. OEHHA abandoned the idea that the only chemicals which must be identified by name were those 12
chemicals identified in earlier drafts of these regulations. Following is one example for the cancer and
reproductive harm warnings (which may not be suitable for use in all circumstances):

WARNING: This product can expose you to chemicals including [name one or more listed chemicals]
which [is/are] known to the State of California to cause cancer and [name one or more listed 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.

Care must be taken to match the warning text and the listed chemical(s) for which the warning is given.

General Additional Considerations. This notice focuses on consumer product warnings. OEHHA also updated
the environmental exposure warning text. Environmental exposures are those that occur in an area (e.g., inside a
business, at a gasoline station). The new regulations are complex and may sow confusion, especially during the
two year transition period when we expect many different forms of warning to appear.
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or

Judith M. Praitis Amy P. Lally

Partner Partner
jpraitis@sidley.com alally@sidley.com
+1 213 896 6637 +1 213 896 6642

Sidley Environmental Practice

Our EnvironmentalPractice consists of approximately 40 lawyers who concentrate on environmental and natural resources law.
Established more than 35 years ago, our group is now one of the largest environmental practices in the United States, with
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extensive experience in all aspects of environmental and natural resources law. The depth and range of our practice and the
frequency with which we address cutting-edge issues enable us to advise clients quickly and cost-effectively. For further
information on our Environmental Practice, please contact David T. Buente (+1 202 736 8111, dbuente@sidley.com), Robert M.
Olian (+1 312 853 7208, rolian@sidley.com) or Judith M. Praitis (+1 213 896 6637, jpraitis@sidley.com).

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