The Amendments are effective on August 30, 2018. In the interim, businesses may opt to provide “safe harbor warnings” using the new methods and content provided by the August 2016 version of the regulations (as amended), or continue to use their existing warnings during the phase-in period. After August 30, 2018, all businesses that wish to take advantage of the safe harbor provisions of the regulations will need to use the warning methods and content in the August 2016 version of the regulations, as updated by these Amendments. Due to the time it takes to transition to the new warnings and allowing time for product to work its way through the channels of distribution, many companies have already begun to incorporate the new warnings now.

Prop 65 requires businesses to provide a “clear and reasonable warning” before causing a knowing and intentional exposure to a substantial list of regulated chemicals in consumer goods, food, beverages, places of business, and public places that are known to the state to cause cancer or reproductive toxicity. Key clarifications to the Amendments include the following provisions:

• Labeling: The definition of “Labeling” was modified to include a “package insert” as an example of “Labeling” in lieu of “tags at the point of sale or display of a product.”
   
  OEHHA maintains that owner’s manuals and package inserts are insufficient standalone safe harbor warning methods for consumer products. It is OEHHA’s position that a business, however, is free to use such a method if it can show that the warning provided is clear and reasonable under the circumstances. Nonetheless, OEHHA has not provided any examples of how use of a standalone safe harbor warning in an owner’s manual or package insert would be “clear and reasonable.” In our experience, use of such standalone warnings would be “high-risk” in terms of likelihood that a would-be private plaintiff might challenge whether such warning is “clear and reasonable.” This is, in part, because it is less likely a consumer will read the manual or insert prior to most types of exposures that commonly occur via consumer products.
   
  OEHHA indicates that point of sale warnings (e.g.¸shelf warnings) may or may not be clearly associated with a specific product. For instance, if retailers were to post multiple product-specific warnings at the point of sale, it is less likely that a consumer would see the warning for any specific product. OEHHA therefore states that it cannot deem most point of sale warnings for specific products as “clear and reasonable” (outside of use of certain safe harbor warnings such as the Alcoholic Beverage Exposure Warning).
   
• Responsibility for Notice: Prop 65 allows a manufacturer, producer, packager, importer, supplier, or distributor of a product to comply with Prop 65’s warning requirements by providing written notice directly to the authorized agent for a retail seller. This notice must be renewed, and receipt of the renewed notice confirmed electronically or in writing by the retail seller’s authorized agent no later than February 28, 2019 and annually thereafter. While a theoretical compliance option, it has been our experience that most retailers will not agree to take on this responsibility from an upstream manufacturer or supplier who likely has a better understanding of what chemicals are in a product.
   
• Catalogs: OEHHA clarifies that the safe harbor warning content is required for a safe harbor catalog warning. However, there still appears to be some ambiguity regarding what constitutes a warning that “clearly associates [the warning] with the item being purchased” when compared to website warnings that allow the use of a hyper-link to another webpage. Further clarification is being sought on this point.
   
• Authorized Agents: OEHHA clarifies how an authorized agent may receive notice and warning materials on behalf of a retail seller from a product manufacturer, producer, packager, importer, supplier or distributer via a monitored electronic mailbox or post office box.
   
• Labels: OEHHA modified the definition of “Label” to clarify that there is no requirement to place a separate label with a warning on the product if the warning is printed on the product or the immediate container or wrapper.
   
• Content of Consumer Product Exposure Warning: OEHHA clarifies that the content of the consumer product exposure warning for exposures to both listed carcinogens and reproductive toxicants may not delete the phrase “chemicals including” (which apply only to warning content for a single chemical) from the warning content.

OEHHA also provided clarifications and guidance for certain industry-specific provisions including for food and beverages served or sold at restaurants and furniture product exposures.

• Food and Beverage Exposure Warning for Restaurants: OEHHA clarifies that the food and beverage warning per Section 25607.5 may include exposures to listed chemicals in alcoholic beverages. If alcoholic beverages are served or sold in a restaurant, warnings pursuant to Section 25607.3 (methods of transmission for alcoholic beverage exposure warnings) and 25607.4 (content of alcoholic beverage exposure warnings) must also be provided.
   
• Furniture Product Exposure Warnings – Content: OEHHA adds clarity to 27 CCR § 25607.13(a)(2)(B) by adding the term “and” to the warning notice to denote that some furniture products can expose a person to both carcinogens and reproductive toxicants. The prior language incorrectly suggested that exposure to chemicals listed for only one endpoint is possible from furniture products.