The California Office of Environmental Health Hazard Assessment (OEHHA) recently clarified its regulations on when a warning needs to be given when marketing consumer products via the Internet or catalogs. The regulations implement the California Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65 (Prop 65). OEHHA’s eleven “Questions and Answers for Businesses” (published on December 15, 2017, and located here) state OEHHA’s position on how businesses using Prop 65 warnings posted on the Internet and in catalogs, which is an option for compliance with the “safe harbor requirements,” can ensure these warnings do, in fact, comply.
As background, Prop 65 requires businesses to provide a baseline “clear and reasonable warning” before knowingly and intentionally causing an exposure (in California) to a list of over 800 regulated chemicals known to the state to cause cancer or birth defects. These exposures can occur in consumer goods, food, beverages, places of business, and public places. Beyond the broader “clear and reasonable” standard, the state has issued a prescriptive “safe harbor” warning which, when followed verbatim, ensures compliance with Prop 65.
Increased use of the Internet, as well as electronic (and printed) catalogs, to market consumer products has resulted in confusion as to how businesses can practically comply with Prop 65’s clear and reasonable warning requirements and the more conservative safe harbor compliance options. The initial regulations and guidance offered by OEHHA generated questions about nuanced differences between how Internet and catalog warnings compare. OEHHA’s new guidance attempts to clarify what is necessary to trigger the narrower safe harbor requirements for warnings using these mediums. Theoretically, a business may still be able to comply with the broader clear and reasonable threshold, even if it does not satisfy the heightened requirements of the safe harbor compliance options.
Key clarifications include:
Internet purchases
- Internet warnings must be provided prior to completing a purchase: To meet the safe harbor requirements, businesses that sell products over the Internet must provide a safe harbor warning to the purchaser prior to completing the Internet purchase. The warning may appear on the product display page or be otherwise prominently displayed in a manner that clearly associates the warning with the product before the purchase is completed. This online warning is in addition to the warning requirement provided on, or with, the product through one of the four methods described further in 27 Cal. Code of Regs. section 25602(a)(1)-(4) (i.e., point of display warnings, warnings provided at a retail store through an electronic device such as a scanner or barcode reader, warnings on labels, and on-product warnings).
- Hyperlink alone is insufficient for safe harbor protections: OEHHA clarifies that a business would need to use one of the methods in section 25602(a)(1)-(4) (e.g., an on-product label) in addition to a separate Internet warning prior to completion of the purchase of an item (e.g., a hyperlink). Use of a hyperlink warning alone will not meet the safe harbor requirements.
- Warning symbol on product display page is insufficient for safe harbor protections: A warning symbol (typically, a yellow triangle with a black exclamation point inside it):
on an online product display page, without the text of the warning, would be insufficient to meet the safe harbor requirements. According to OEHHA, online retailers cannot use a warning symbol alone as a reference to a full consumer product warning provided elsewhere on the website if they wish to take advantage of safe harbor protections. Instead, online retailers may choose to provide a short-form warning on the product page, a clearly marked hyperlink to the full warning text, or a pop-up warning that displays once the online purchaser identifies as a California resident.
- Out-of-state Internet retailers are not exempt from Prop 65: Prop 65 applies to all businesses with 10 or more employees that cause exposures in California to a list of chemicals through their products. A retail seller may comply with the safe harbor regulations by providing the warning only to persons who reside in California. OEHHA indicated that some retail sellers do so by providing the warning as a pop-up when the purchaser enters a California zip code. This process, OEHHA contends, would comply with the requirements of the regulation to “otherwise prominently display […] the warning to the purchaser prior to completing the purchase.” Retail sellers may also elect, though they are not required by Prop 65, to place Prop 65 warnings on all products, including those sold outside of California.
Catalog purchases
- Catalog warnings must be provided for safe harbor protections: To meet the safe harbor requirements, any business that sells products in a catalog must provide a clear and reasonable warning in the catalog in a manner that clearly associates it with the items being purchased. This is in addition to a warning provided on or with the products via one of the four methods listed in section 25602(a)(1)-(4).
- A warning symbol (alone) placed near a product in a catalog is insufficient for safe harbor protections: It is OEHHA’s clarified position that a warning symbol placed near a product in a catalog, without the text of the warning, is insufficient to meet the safe harbor requirements. Businesses, OEHHA contends, cannot use a warning symbol as a reference to a full consumer product warning provided elsewhere in the catalog if they wish to comply with the safe harbor requirements. The warning must be given in a way that shows it is clearly associated with the product being purchased instead of requiring the purchaser to seek out the warning on a different page of the catalog.
This clarified treatment of catalog warnings is concerning in that it appears to treat catalog warnings differently than website marketing (which can utilize a hyperlink to take the reader to a different webpage). Discussions with OEHHA are ongoing as to why a visual symbol (analogous to a hyperlink) on a catalog page that directs the reader to another page of the catalog should not be an equally acceptable compliance option.
While businesses are not required to comply with the safe harbor provisions of Prop 65, as the name suggests, they are the safest compliance option – when practical. Where strict adherence to the safe harbor approach may not be practical (e.g., where a print catalog with multiple products per page would require multiple Prop 65 warnings on each page), businesses may need to consider alternative warning methods and content for products sold online and in catalogs.
However, this will take them outside of the safe harbor, so they will need to be prepared to defend the warning as still meeting the “clear and reasonable” baseline statutory requirement, if challenged.
Client Alert 2017-311
