The Chaos and Confusion Surrounding Proposition 65

“WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and/or (as appropriate) [name of one or more 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/food.”

The amended regulations also allow the use of a “short-form” warning. This warning must appear in a size no smaller than the largest font size used for other consumer product information affixed to the product and must be at least 6-point type. A short-form warning label may be used on any size product. Here is an example:

“WARNING: Cancer and Reproductive Harm—For more information, visit www.P65Warnings.ca.gov.”

The warnings must be provided on the food product label (enclosed in a box) or on a product sign, label, or shelf tag at the point of display of the product. The new requirements are applicable to all modes of purchase and distribution, including online/internet and catalog purchases as well as direct-import and drop-ship delivery, and require an understanding of the chemical constituents of all products sold or distributed in the state of California.

Prop 65 Compliance Questions

While the new regulatory changes on their face appear to be relatively straightforward, achieving compliance may remain elusive for many companies. Since there are nearly 1,000 chemicals on the Prop 65 list, how are food companies going to be able to determine which chemicals may (or may not) be present? The problem extends much further up the supply chain, as well, because a food company’s ingredient suppliers may not know either. Some suppliers may not have even heard of Prop 65.

Additionally, some chemicals, like acrylamide, may not be present when the product is sold, but are created when the consumer cooks the product at high temperatures. Under these circumstances, a warning may be required, so food product manufacturers may need to do substantial additional testing.

The placement and type of warnings may create confusion as well. What happens when a product manufacturer chooses not to place the warning on its product, but elects instead to send separate product warnings to their customers instructing them to place the warning on store shelves, and those instructions are not followed? Even if they were followed, since there is no minimum size warning for shelf warnings, who will determine whether the warnings are sufficient. Often, retailers and plaintiff lawyers will disagree.

So, when it comes to Prop 65 compliance, certainty is fleeting. The one thing that is (and will likely remain) certain, however, is Prop 65 is officially a law known by the State of California, and now the rest of the world, to create chaos and confusion.

Stevens, a food industry attorney, is a founding member of Food Industry Counsel, LLC. Reach him at [email protected]. Chappelle is also a food industry lawyer and consultant at the same organization. Reach him at [email protected].

AUTHORS DISCLAIMER: This article is intended only to offer a broad overview of recent changes to Proposition 65. Businesses should consult with experts or attorneys to evaluate their responsibilities under Prop 65 and protect themselves from any potential claims.