Reed Smith Client Alerts

Following a recent settlement between the California Attorney General's Office and a number of alcoholic beverage retailers, the Office of Environmental Health Hazard Assessment is proposing to clarify certain provisions addressing Proposition 65 consumer exposure warnings for regulated chemicals in alcoholic beverages. The amendments would affect industry stakeholders such as retailers, manufacturers, and third-party providers.

Auteurs: Todd O. Maiden Eric J. Schmoll

Background

The Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency that implements the California Safe Drinking Water and Toxic Enforcement Act of 1986, better known as "Proposition 65" (the Act). OEHHA promulgates and can amend regulations to further the purposes of the Act. 

Among other things, the Act requires businesses to provide a "clear and reasonable warning" before exposing persons in California to any of over 900 chemicals which are linked to cancer or reproductive toxicity. OEHHA amended the Act's Clear and Reasonable Warnings regulations in August 2018 to include tailored warnings for several specific types of exposure situations (Section 25607.1, et seq.). The Act lists alcoholic beverages as increasing the risk for cancer, and, during pregnancy, birth defects. Historically, some alcoholic beverage containers have also contained listed chemicals.

The proposed amendments will clarify the warning requirements for alcoholic beverages sold on the internet, in catalogs, and via third-party providers. These amendments track the provisions of a recently proposed settlement between the Attorney General's Office and a number of alcoholic beverage retailers, thus allowing any alcoholic beverage manufacturer or retailer to use warning methods proposed in that settlement.

The most prominent item in the settlement's methods and in OEHHA's proposed amendments is that alcoholic beverages sold online or through catalogs must have a warning on the internet site or in the catalog as well as a warning provided to the purchaser or delivery recipient prior to or at the same time as delivery (e.g., a warning label on a bottle or can). The proposed amendments are explained further below.

Section 25607.3. Alcoholic Beverage Exposure Warnings - Methods of Transmission Amendments

Location-Specific Warnings

The phrase, "for alcoholic beverages sold at a physical location:" is proposed to be added to clarify that warnings are location specific. Warnings provided on the premises do not satisfy the requirement for providing a warning for products delivered to customers at locations other than the point of sale or for products purchased over the internet or through catalogs.