Even though the new requirements place primary responsibility for providing warnings on product manufacturers, retail companies (such as ecommerce retailers without physical places in California) can’t sell products to California residents that expose them to chemicals that might cause cancer, birth defects, or other reproductive harm — without providing clear and reasonable warnings.
California Prop 65
Approved in 1986, California Proposition 65 requires the state to release a list of chemicals known to cause cancer or to interfere with human reproduction. The law doesn’t prohibit the purchase or use of listed chemicals; instead, it addresses concerns about exposure.
Under Prop 65, companies with 10 or more workers that knowingly and intentionally expose California customers to meaningful levels of particular chemicals must warn those customers. Failure to provide clear and reasonable warnings may lead to as much as $2,500 per day in penalties, in addition to civil lawsuits.
In actuality, because Prop 65 took effect, some companies, including companies based out of California, have complained that the law exposes them to frivolous civil action and undue compliance costs.
For instance, the Center for Accountability in Science, a contentious non-profit group, has published several reports, articles, and videos assaulting California Prop 65.
“Between 2010 and 2017, businesses lost a total of $182.1 million settling Proposition 65 lawsuits — a figure that doesn’t include the amount paid in cases that actually went to trial,” the Center for Accountability in Science reported.
The fear of lawsuits directed some product manufacturers and businesses to place a generic Prop 65 warning label on just about everything.
Back in 1986, over two-thirds of California voters approved Prop 65. Even today, you would be hard pressed to find consumers everywhere who wouldn’t need to know that a specific product exposes them to possible injury. But in California, over-warning turned into a significant issue.
As opposed to determining if a product contained a compound on the Prop 65 list or determining if the risk of exposure merited a warning, product manufacturers and other companies simply placed a generic note on just about everything.
WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.
When every item, restaurant, amusement park, and retail shop contained a cancer and birth-defect warning, no actual information is being supplied to customers. Hence the organization responsible for administering Prop 65 made a change.
Even Disneyland posted a generic Proposition 65 warning. The purpose of the warning was to limit exposure to lawsuits, but it didn’t offer any real or actionable advice.
Starting August 31, 2018, Prop 65 warnings should (a) title of at least one recorded compound that prompted the warning, (b) contain the URL www.P65Warnings.ca.gov, which is a source for further information, and (c) feature a yellow, triangular warning symbol. Here’s a warning of arsenic, for instance.
WARNING: This product can expose you to chemicals including arsenic, which is called the State of California to cause cancer. To find out more, visit www.P65Warnings.ca.gov.
The hope is that the simple act of naming a single listed chemical would require businesses to compare their products to the Prop 65 chemical list and so provide more meaningful warnings.
The new Prop 65 warning requirements also explain the relationship between retailers and manufacturers. While manufacturers have the main duty of providing warning labels or notifying retailers of the possibility of exposure to listed substances, ecommerce companies must warn shoppers before a purchase is made.
California Proposition 65 (PDF) Department 25602(b ) ) requires online vendors to offer a warning (or a hyperlink to such a warning) for any product that would expose a California resident to a listed chemical at a concentration above a safe harbor level.
This condition has caused some online vendors to temporarily stop sending products to California residents. For example, Murdoch’s Ranch and Home Supply posted this note on its shipping policy page:
Areas in California. As of August 31, 2018, we’ll temporarily suspend shipping to California addresses as we work to upgrade our systems and product information to inform clients of potentially harmful chemicals in products which we market as outlined in Proposition 65.
Some online and multichannel retailers are not really shipping items to California. Murdoch’s, the ranch and farm retailer, posted this note, temporarily suspending product shipments to California addresses.
For an ecommerce company, the challenge might be capturing the ideal warning message for each item. This could require an internet merchant to keep Prop 65 information as product characteristics from the business’s database.
It may be a challenge to know which products need a Prop 65 notice. The retailer of the cutting wheel is uncertain, saying”it might not be shipped to California.”
For instance, each item record within an ecommerce database could store a field identifying whether a product required a Prop 65 warning. The manufacturer would offer this information.
If a warning has been required, the item database may also identify at least one recorded chemical and define whether the warning is linked to cancer, birth defects, or both.
Using this approach, a web developer could prepare the website to display the correct warning on a particular product detail page, in the shopping cart, and through the checkout procedure , thus limiting an internet retailer’s exposure to penalties and lawsuits.
Another approach is to put all Prop 65 warnings on a single page and link to that page from each affected item.
At the time of writing, Amazon had adopted this approach. Products that could expose a California resident to a listed chemical include a warning telling link on the Amazon product detail page. The link results in a bigger warning page describing the possible exposure of various types of merchandise.
Amazon has consolidated Prop 65 warnings on a single page.
It can also be that some products simply can’t be sold to customers in California. As opposed to taking the time and cost to comply with Proposition 65, some manufacturers delivered notifications to retailers saying that their products might not be sold in California or to its occupants. In these instances, it likely makes sense to search for different providers or simply say that the manufacturer doesn’t allow California sales.
Regardless of what one believes about California Proposition 65, ecommerce companies which sell into California residents now must provide clear and reasonable warnings on specific goods before shoppers make a purchase.