Prop 65 – What You Don’t Know Can Hurt You

Proposition 65 was originally passed by the citizens of California in 1986 as a ballot initiative to protect the state's drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm. The proposition requires businesses to inform Californians about exposures to such chemicals.

In 2016, the state updated the regulation to reflect the realities of the Internet age and to strengthen the labeling requirements. Far too little attention has been paid to this revised regulation. And, with the Aug 30, 2018 enforcement deadline looming, an urgent dash towards awareness and compliance is underway.

This column is not intended to issue legal advice or to interpret the Prop 65 regulation in any way. Frankly, a simple web search for the term “Proposition 65” will return ample results to bring anyone up to speed. The most direct place to go for information and to read the regulation is the web site of the California Office of Environmental Health Hazard Assessment (OEHHA): https://oehha.ca.gov/proposition-65

There are two ways to look at the Prop 65 matter if you manufacture, distribute, retail, install or consume affected product in California (and that covers just about everybody). One is legal compliance. The heart of the regulation is a warning label (a triangle and exclamation mark) and the associated text that includes the specific chemical (s) that triggered the warning. It’s important to note that the maker of the product bears full responsibility to identify if their product is subject to the regulation and to distribute the warning label and text to everyone in their distribution chain. It is the responsibility of the distributors and retailers to faithfully display the warning label and text – without alteration – wherever anyone may come in contact with the product.

Distribution of the warning label as a digital asset and the associated text is a technical challenge that seems to only recently be getting any attention. The auto care industry has widely adopted a format and best practice for the exchange of rich product information called PIES – the Product Information Exchange Standard. Somehow, we got to the spring of 2018 without the phrase “Proposition 65” ever being spoken in a meeting of the Technology Standards Committee. With millions of dollars in fines being assessed on those who were unaware or unconcerned with the rules for compliance, Prop 65 data elements seem worthy of inclusion in the product data standard. 

Prop 65 warnings are required on product packaging, on web sites and catalogs. Some of these requirements are recently new and have sent electronic catalog providers and retailers with operations in California scrambling to comply with the regulation and avoid becoming the next target of Prop 65 Bounty Hunters.

Fortunately, the Auto Care Technology Standards Committee was able to fast-track a Prop 65 addition to the PIES specification at their Spring Leadership meeting. A specific designation for a Regulatory Label image (digital asset) was added to version 7.0 of the standard and a best practice recommendation has been approved for communicating the text that accompanies the image. The text is to be communicated as an Attribute of the product using a “Mutually Agreed Upon” product attribute designation. In trying to anticipate regulatory data requirements in 50 States and an unlimited number of local jurisdictions, the committee wisely chose not to add a “Prop 65” field. Instead they chose to designate a field for a Regulatory Image and prescribed a standard methods to exchange Regulatory Text. Like so many other elements in PIES, these regulatory values can be repeated or looped as many times as are required to conduct business.

While Prop 65 does allow for a sell-through period for products in the distribution chain, the August 30 enforcement date is fast approaching and the need to acquire and distribute the appropriate labels and text is urgent. Computer systems and web content need to be updated and trading partners need to ensure alignment on the warning and text. Of course, you should consult with legal council on this matter. You should also refer to the Best Practice documentation for Delivering Regulatory Content in PIES. The association acted promptly and responsibly once this urgent requirement was identified. Now it is time for everyone in the supply chain to adopt a single best practice procedure to avoid the cost of Prop 65 compliance rising any higher than it already has to. The Best Practice can be found at the Auto Care web site or you can click here - http://www.gcommerceinc.com/customer-resources/prop65/