New Prop 65 Amendments: Supply Chain Compliance Polices, POS Warning, Additional Alcoholic Beverage Warnings

A live 90-minute CLE video webinar with interactive Q&A


Tuesday, December 14, 2021

1:00pm-2:30pm EST, 10:00am-11:30am PST

(Alert: Event date has changed from 10/5/2021!)

or call 1-800-926-7926

This CLE course will address the second set of amendments to Proposition 65, a/k/a the Safe Drinking Water and Toxic Enforcement Act of 1986. The ballot initiative relates to disclosure for consumer goods and the supply chain. The panel will address the additional requirements instituted by this new amendment, what disclosures are needed at the point of sale vs. upon shipment boxes on direct sales, and what new disclosures are needed on alcoholic beverages specifically. The panel will address best practices in reviewing clients' supply chains to meet compliance with the amendments.

Description

Proposition 65 prohibits businesses from exposing California consumers to certain levels of chemicals identified by the state to cause cancer and/or reproductive harm without warning. The regulations specify "safe harbor" warning language that can be provided with a product to ensure compliance.

The proposed amendments were issued because of the "widespread use of short-form warnings in ways that were not intended and did not further the purposes of Proposition 65" and "numerous inquiries" about when the short-form warning could be used. The new amendments only allow the use of short-form warnings on products with five square inches or less of label space and where the package shape or size cannot accommodate the long-form warning. Proposals to Prop 65 contrasts with the current regulations, which allow businesses to determine the warning they want to use, regardless of the size of the label or the size or shape of the package.

The new proposed amendments also include additional warnings for alcoholic beverages sold over the internet or through a catalog that require a warning to be provided to the purchaser or delivery recipient either before or contemporaneously with the delivery of the product. The warning must be provided either (1) on or in the shipping container or delivery package or (2) by email or text message as part of an electronically delivered receipt or purchase confirmation.

Businesses within the supply chain must consider who must provide the warning and what that warning must be. The party in the best position to ensure that the warning is delivered in compliance with new Proposition 65 amendments are likely on the hook for failure to comply if the party selling or facilitating the sale to the consumer is alcohol delivery. In many instances, the product producer may have no control over the packaging or point of sale documentation for products delivered from a retailer to a consumer (e.g., those suppliers who are generally not permitted to ship their products directly to consumers).

Another Prop 65 issue relevant to alcoholic beverage suppliers relates to other ingredients within alcoholic beverages or their packaging, like bisphenol A (BPA), which may be used in cans, bottle caps, or lid liners. BPA is included on California's list of products known to cause cancer or reproductive toxicity and requires a warning under Prop 65. To date, the general industry position on this issue appears to be that the point-of-sale warning adequately covers all ingredients in an alcoholic beverage except BPA in a container, which requires a separate warning. Note, however, that this position has not been challenged. California could argue that the alcoholic beverage warning does not adequately cover any additional listed chemical that appears as an ingredient in the product.

Listen as our expert panel discusses these regulatory changes that create business issues and best practices for structuring supply agreements to comply with Proposition 65, critical guidance on new terms, risk-shifting measures, and drafting pitfalls.

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Outline

  1. Overview of most recent Proposition 65 amendments
    1. Warnings
      1. Safe harbor exceptions
      2. Long-form
      3. Point of sale warnings
    2. Compliance requirements for alcohol
    3. Impact of supply chain
    4. Creating Proposition 65 compliance for suppliers

Benefits

The panel will review these and other relevant issues:

  • How can counsel address vagaries in inter-supply chain information requests in achieving compliance?
  • What are the best practices for suppliers when creating a clear Proposition 65 compliance policy?
  • What are the Proposition 65 warnings that should be made at the point of sale with the onus on manufacturers to comply?
  • How should BPA warnings, when necessary, be offered in addition to the alcoholic beverage warning made to consumers?

Faculty

Ellis, Anne Marie
Anne Marie Ellis

Senior Counsel
Buchalter

Ms. Ellis regularly helps clients navigate compliance with California’s Proposition 65. She also consults with...  |  Read More

Erikson, Michelle
Michelle Corrigan Erikson

Partner
Stinson

Ms. Erikson has 20 years of experience in the areas of products liability, children's products, food law and...  |  Read More

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