Are you familiar with the new regulations that went into effect September 1, 2018 for all products sold in California?
California Proposition 65 requires manufacturers to notify California consumers of any chemical in the product that can cause cancer, birth defects or both. In the past, a symbol warning covered the legal requirements.
Starting September 1, 2018, all products sold in California must provide a required label which lists at least one of the chemicals found in the product which causes cancer, birth defects or both. A list of those chemicals, almost 1000, can be found here: Chemicals Listed under Proposition 65.
If your product contains one of the chemicals on the list in quantities specified for each chemical you MUST place a label on the product, catalog, website, etc.
The major challenge to product manufacturers is the new regulations allow any consumer to sue for failure to provide the required warning label. The damages for failure to provide the proper label is $2,500 per day per product. If you sell four products that are on the list your damages are $10,000 a day, $300,000 a month, plus interest, court costs and attorney's fees.
If you use any third party e-Commerce retailer or your products could be sold to residents of California through a reseller, you will need to comply.
It is critical to get your labels up-to-date or it could be costly. Every product, item, thing sold in California must comply!
New Regulations for California Proposition 65 will affect products, websites and catalogs and in some cases the products itself. All products manufactured after August 30, 2018, sold in California must have this label on the product.
Failure to conform can incur penalties of $2500 per day per violation of the law. The regulations are created by California’s Office of Environmental Health Hazard Assessment (“OEHHA”). These new regulations can significantly affect your online e-Commerce.
For example, regarding impacts on two of the four categories we have detailed information for you in this complete reference you can download:
One aspect of the comprehensive change in how warning labels are provided requires products that contain any of a list of chemicals must have a warning label about the product. The list of chemicals on the list can be found here: Chemicals or Listed under Proposition 65. You can download a list of the chemicals here. There are currently 967 chemicals on the list and the list adds new chemicals yearly. Now, you MUST know all chemicals in your product. If your product contains one on the list, you have to list it on the label. An example of how the new warning label must look is:
If the chemical is on the list because it may injure a fetus the warning must look like this.
The New Warning and Requirement to list the known chemicals in the warning are not all that is now required. Warnings must also be posted in Catalogs and on websites. For catalog sales, the warning must be located in a position to be associated with the product that is being sold that contains the chemical. This means you can’t just post the warning in the beginning of the catalog; it must be on the page with the product.
Websites must have the warning on the same page as the product is being sold on. If not on the same page as the product, the warning must be communicated to consumers prior to finalizing the purchase.
You should get ahead of the game and move expeditiously to execute a strategy to adopt and implement the new warnings now.
So You Are Asking Yourself
What if I don’t sell products in California? You may not sell products in California. That is not the issue; the issue is if your product is sold in California, you will be the one paying the fines and penalties.
What if I label the products “Not for Sale in California? When was the last time you read a label? Your product is labeled and sold to someone in Nevada, who then travels to a flea market in California. Again, you pay the fines.
What other ways are there around this? There aren’t any.
What if my manufacturer won’t tell me the chemical composition of the components in my product? Find a new manufacturer, quickly.
We have decided to just wait and see if we get caught. Everyone will be caught because there is too much money involved. If you are a manufacturer with one hundred sku’s half of which contain a chemical that is on the California list would be facing $3,750,000 in damages at the end of the first month. By the time you respond to a demand, test your product and respond, you will be bankrupt.
Speaking of that, the law allows law by private citizens to sue manufacturers for failing to comply. The citizen gets a portion of the money collected, and you pay for the attorney who sued you as well as your own attorney. There are law firms and “consumers” setting up and starting these lawsuits already.
We hope you find this information useful as you execute a strategy towards complying with this new law.
For other information on managing and growing your outdoor brands e-Commerce, check out our e-Commerce overview article.
This article was co-written with James H. Moss J.D., Recreation Law. Jim has been recognized as the "go to lawyer" by the Outdoor Recreation Industry. He has been known to don a toga at a show party and he learns from what he observes on the show floor. He was featured in the 35th-anniversary issue of Outdoor Retailer magazine. You can reach Jim through his website of Recreation Law, his email of Jim@rec-law.us or via his phone at (303) 807-2275.
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