California’s Prop 65 requires businesses with 10 or more employees to provide a clear and reasonable warning before knowingly and intentionally exposing individuals to chemicals that the state has determined cause cancer or reproductive toxicity. While the primary burden of warning consumers falls on manufacturers, Prop 65 applies to everyone in the supply chain; no one is exempt from liability.
For years, businesses, including the furniture industry, have relied on long-standing regulatory guidance to determine how to provide warnings and what they must say. What’s new is that the Office of Environmental Health Hazard Assessment (OEHHA) recently finalized regulations which provide specific guidance on the new product warning label. The revised regulation goes into effect August 30, 2018, but manufacturers and retailers can choose to comply now. The new regulations contain an unlimited sell-through period, meaning products manufactured prior to August 30, 2018 may comply with the long-standing warning regulations, even if the product is sold after the effective date. Products manufactured on or after August 30, 2018 must comply with the new regulations.
This new regulation, Article 6, contains several provisions and modifications including a furniture-specific safe harbor. Within the new furniture-specific safe harbor, the regulation now clarifies that a separate Prop 65 label is not required for furniture. Instead, according to the regulation manufacturers can affix the Prop 65 warning to the product “in the same manner as other consumer information or warning materials that are provided on the product.”
This means manufacturers can use the existing manufacturing label as a ‘billboard’ to display all product information.
However, the amended regulation changes the language in the required warning. The revised warning needs to list at least one specific chemical believed to cause both cancer and reproductive harm, or a minimum of two specific chemicals (with one believed to cause cancer and the second believed to cause reproductive harm).
The manufacturer can select which chemical to list. The warning also is now required to contain a yellow hazard triangle symbol, although the symbol need not be printed in color if there is no other color on the label. The new warning reads:
The font size and style on the previous page was selected for purposes of illustration only.
While OEHHA does not specify font requirements, the regulation requires warnings to be prominently displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling or sign, as to render the warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use.
For internet sales, an online retailer must provide an online warning that must be viewed by the customer prior to purchase.
This must happen even if the product the customer is buying already contains a warning.
Retailers are responsible for the placement and maintenance of warning materials received from suppliers; for warnings on any private label products and for warnings on any products for which they are they importer of record. Retailers MUST be able to provide the name and contact info for upstream companies upon request to OEHHA, the public enforcers or any private enforcer who serves a 60-day notice letter IF the requestor provides a description of the product with specificity in accordance with the regulation (this means they must ask for info on a specific sofa not just all sofas in your store).
Aside from the warning on the law label or manufacturer’s label, home furnishings retailers must either post the Prop 65 warning at each public entrance on an 8 ½ x 11″ sign in 28-point font or stamped on each receipt in 12-point font (see warning label language above).
Many manufacturers label all their product—not just that specifically for sale in California.
While California consumers are used to these ubiquitous labels on products (and signs posted in hotels, retail stores and even family-friend Disney), consumers in the other 49 states are not.
Understandably those consumers may have questions and concerns.
The Home Furnishings Association is making a letter available to all members. The letter is designed to help explain Prop 65 to consumers. HFA members can log into the member portal to download the sample letter.