Prop 65 safe harbor warnings creating supply chain friction

16:16 PM | February 11, 2019 | Rebecca Coons

Changes to California’s Prop 65 safe harbor warnings is creating “angst” along the supply chain, with often low-end products as varied as dry roasted peanuts and folding canes being targeted by serial filers. 

The new regulations, put in place in August of last year and policed by the state’s Office of Environment Health and Hazard Assessment, rewords the ubiquitous Prop 65 label and requires the warning to list at least one chemical prompting the warning and their toxicological effect, i.e., causes cancer or reproductive harm. 

For example, the old Proposition 65 warnings stated, “WARNING: This product contains a chemical known to the State of California to cause cancer.” A new warning might read, “WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”

The new regulation has forced businesses, manufacturers, and the supply chain to really think about what’s in their products so they can make informed decisions, Anne Marie Ellis, Senior Counsel at Buchalter Law Firm (Orange County, California), tells CW. “This applies not only to specific products on the Prop 65 list but also consumer products that had generally been determined on a case by case basis.” 

Lead and phthalates have been the vast majority of chemicals targeted. “The biggest challenge for most businesses is getting accurate information from up the supply chain,” Ellis says. “Unlike most federal regulations, Prop 65 is not about how much is in the product in parts per million, it’s about exposure levels. A lot of businesses are unwilling to do the exposure analysis or they just don’t have the resources to test every product to determine whether or not levels are below the safe harbor level, so they’re labeling just to be safe.” Exposure testing ranges between $2,000¬–$5,000, she adds. 

Products targeted have included art materials, car seat covers, folding canes, molasses, pet carriers, activity gyms, cable cutters, lunch boxes, and earbuds. 

A majority of notices of violation are coming from alleged environmental groups, Ellis says. “There are serial filers filing thousands of notices,” she says. “It’s pretty rare for the government to get involved unless it involves serious issues like glyphosate, a herbicide or acrylamide in coffee.” 

The new Prop 65 labeling is creating some chaos along the supply chain. “We’re seeing the most angst in relationships between manufacturers, suppliers, distributors, and retailers and whose responsibility it is to actually investigate the warnings and deal with indemnity on the back end.  From a business standpoint, companies want assurances from their suppliers about what is in their products, and for some businesses it is very, very difficult to get the information. A US manufacturer buying product out of China could need assurances for hundreds of products, and it’s not always possible to get the information or have it be accurate.” 

From a chemical company standpoint, it is key to be giving accurate and transparent information to the supply chain, she adds.