Changes to California's labeling law Prop 65 to take effect by month-end

California’s Proposition 65, first passed in November 1986, will have new guidelines for all products sold in the state as of 30 August. 

Known widely as the legislation that requires some products to have the label “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects and other reproductive harm,” the new rules have updated the “clear and reasonable warnings” section of the law. Now, any product that contains one or more of over 900 listed chemicals in “significant” amounts must clearly label which chemical is present.

The new label requirements include containing a “black exclamation point in a yellow equilateral triangle with a bold black outline.” If the label has no color, it may be printed in greyscale. The label must also say “WARNING” in all capital letters in bold print, and list at least one of the chemicals the product contains that are named on the list of known chemicals. Finally, the label requires a link to the Prop 65 website, www.P65Warnings.ca.gov.

The new rules were passed on 30 August, 2016, and so far have been undergoing a two-year grace period. Post 30 August, 2018, however, any company selling a product – including seafood – inside California that could contain a chemical in significant amounts must have the new labeling on their products or risk a lawsuit. 

“Two years ago we adopted this regulation to make these warnings more useful and more informative, in our opinion,” said Sam Delson of the Office of Environmental Health and Hazard Assessment, who manages the list of chemicals. “The old warnings really don’t tell you anything.”

Previously, the labels that became widely known throughout the United States for their cautions about cancer, never actually told you what exactly it was in the product that could be harmful, according to Delson. The labels also didn’t say what the risk was, and how to avoid those types of chemicals in the future. 

While the labels are new, the products requiring a label are the same. Lynsee Fowler, of the National Fisheries Institute, said the organization is making sure its members are aware of the coming changes and requirements. 

“The list of Prop 65 compounds has not changed given this new rule, so what was required before is still required, and what was not needed before is not needed now,” Fowler said. 

The law specifies that the presence of the chemical must prove a “significant risk” to a consumer exposed to it. For example, if Bisphenol A (BPA) is present in a product, it must contain a sufficient amount of the chemical to increase the chance of cancer. 

“The warning is based on exposure, not content,” said Delson. “If there’s no exposure to people, there’s no warning.”

For the seafood industry in particular, the caveat that products must expose California consumers to sufficient levels of a listed chemical is important.

Carbon Monoxide, one of the listed chemicals in Prop 65, is used to preserve the color in the fillets of several fish species. According to Delson, that use wouldn’t require a label, as long as the gas wasn’t exposing consumers. 

“That would probably be an occupational exposure rather than a consumer exposure,” he said. Occupational exposure is covered under federal law, and does not require a consumer-level label.

Another key change to the Prop 65 legislation is the liability of who has to give the warning. The language has been changed to require any company manufacturing a product that contains one of the listed chemicals to provide the proper labeling materials. 

According to the wording of the changes, the motivation is to “minimize the burden on retail sellers of consumer products.” It requires any “manufacturer, producer, packager, importer, supplier, or distributor of any product” to comply with the article by either providing a label or providing written notice directly to the “authorized agent for a retail seller.”

“The manufacturer or distributor has the primary responsibility for determining if a warning label is needed,” Delson said. “It clarifies that the primary responsibility is with the manufacturer or the distributor.”

Enforcement of these standards will still be left up to California consumers, something that the law has come under criticism for in the past.

“It’s kind of unique,” Delson said. “Any citizen can file an enforcement action.”

That has led to some criticism of the law as a cash-cow for law firms looking to capitalize on insufficient labeling. In 2017, out of 333 judgements on Prop 65, USD 167 million (EUR 144.3 million) was awarded in penalties. 

The seafood industry has come up against Prop 65 lawsuits in the past. In 2009, StarKist, Bumble Bee, and Chicken of the Sea successfully fended off a lawsuit – which lasted several years – about their lack of labels stating that methylmercury is present in tuna. 

The companies successfully argued for a “natural occurrence” exemption, and the court agreed that the scientific evidence indicates that the mercury present in tuna occurs normally and doesn’t require additional labeling. 

Other exemptions that have already existed with other products will also be carried over to the new regulations, according to Delson.  

“All those are grandfathered in, so they don’t have to change,” he said. 

Essentially, if it needed a warning label before, it needs the new one now. If it didn’t require one at all, then that still holds true under the new rules. 

Only applicable products sold in California will require labels of this sort.  

“If you’re not exposing Californians, then the law does not apply to you,” Delson said.