Every Manufacturer worldwide selling in California must meet these new Labeling Requirements. New California Proposition 65 warnings will become effective in one year.

Get your labels up to date or it could be costly. Every product, item, think, sold in California must comply.

The Outdoor Industry has had its first notice letter mailed to a manufacturer based on California Proposition 65.

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.

All products currently being sold in California that contain one of the known products must have a label on it now.

Summary

California Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act of 1986) 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. However, there is a one-year grace period to comply with the required warnings after a chemical has been added to the list.

In the past, if you thought, your product might contain one of the chemicals on the list; you simply put the warning on the product. Those days are gone. Now, you MUST know all chemicals in your product. If your product contains one of the chemicals, you have to list at least one of the chemicals on your label. The broad approach to warning will no longer work.

The new labels have been created to counteract this mass labeling by requiring a list of the dangerous products in the product to be included in the warning. The labels must include a specific yellow triangle, a link to the California Proposition 65 website and other information.

The bigger problem is the list of chemical’s changes every year. In the past, it has changed several times during a year. However, the state of California seems to be attempting to limit the changes to yearly now, publishing the new list every July.

Warnings are broken down into two categories, those that may cause cancer and those that may harm an unborn fetus. The first group is identified as carcinogens. The second group is identified as reproductive toxicants.

The new warning will look like this if the chemical is on the list that might cause cancer:

If the chemical is on the list because it may injure a fetus the warning must look like this.

If your product contains chemicals that are on both lists, meaning the chemical can cause cancer or injury to a fetus, that warning must look like this.

 

 

 

 

This is a different warning if you place the warning directly on the product. If the warning contains both a carcinogen and a toxicant, the safe harbor warning will look like this.



 

 

However, this warning has minimum type size requirements. The type size must be a minimum of 6pt or nor smaller than the largest type size used for other consumer information on the product.

Catalogs

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

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.

My Thoughts.

I would urge you to adopt the new warnings and put them on your products now. Even though your product was manufactured prior to August 30, 2018, you may still be forced into a court of law to prove the manufacturing date. Plan now to put the new labels on and safe that possible nightmare.

FAQs

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.

Based on current articles and reading there is no way around this. You either find out what is in your product, or you go out of business. If you don’t go out of business a lawyer or the State of California will put you out of business.

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.

One law firm purchased 60 outdoor products in one day from an online retailer. All of the products were tested and demand letters quickly went out. If you expect to hope no one will find your product, that is not going to happen.

Get ahead of the game.

If you want help with this email jim@rec-law.us or call 720 334 8529.

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Warning Labels or Signs: Do yours make sense and do they work?

The only constant in life is the speed of light (so they say) so your warning labels need to be written to be alive and changing.

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We write warning labels so that they are designed to last forever and cover everything. Again, like a constant, nothing lasts forever. So how do you write warning labels?

Identify three different warnings you need to tell your customers about.

1.     Those they need to see every time they use the product.

2.     Those labels your customers need to read to cover your butt and the legal ones (warranty disclaimers).

3.     Those you don’t know about

Group One

Let’s start with the first group. These warnings can be broken down into several questions to help you identify them.

A.           Does your product work the same way every time? If not you may need a warning label.

B.           Does your product have something that if used incorrectly will cause an injury and is done in such a way that the consumer needs reminded of it every time your product is used?

C.           Is there a warning that all of your competitors are using.

Group Two

The second group is a mix of information your customer needs to know, the information your customer can only learn from you; the information needed to protect your customer from every aspect of your product, including hitting someone on the head with it.

Finally add the legal disclaimers needed to CYA.

The label should state the maximum load the product can handle, divided by 3, the maximum stress labeled at 25%. You need to give yourself room for bad testing on your part and wild accusations on the part of your customer. The basics; hot, cold, electrical, wet, storage, heat, sun, freezing, those things that hurt or could kill your customers or ruin your product.

The final thing is the newest and the scariest. You must keep your customers informed of any changes or updates to your product as well anything new you discover about your product. A critical part of this is learning that your product is being used in a way that you did not anticipate or used incorrectly.

The good news is you can use your company website to inform people of the risks.

This is an emerging area of the law, now well-formed and not in all states. However, you can either take a marketing opportunity and make it possible CYA or be late to the game.

Your warnings must sense.

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One of my favorite signs.

Rules for riding the amusement ride. The ride is for little kids, who CAN’T READ! The sign says you can’t weight more than 170 pounds, but your knees would be bumping on the floor.

So is a warning sign effective if it can’t be seen? What if it can’t be understood? What if it can’t be read because the reader cannot read?

Do Something

Rules for Warning Labels

1.   They have to be readable, the first day through the last day of the product.

2.   They have to be found, easily, by someone using the product properly and if used improperly is a real possibility, seen by those using the improperly.

3.   They have to be readable. The print size must be large enough so that you can read them without glasses at the distance appropriate for the product and the warning.

4.   Labels have to be warning labels and marked as such. It can’t be cuddly bears showing what not to do or kittens. It should say Warning in big bright bold letters with the warning under it.

5.   You don’t search for warning labels; they are in your face.

6.   Any warning not to do something is the possible injury or problem is located. If sticking a pin in a hole would cause an injury the warning label needs to be next to the hole.

7.   All Warning Labels must be repeated in the owner’s manual. Important warning labels may need to be on a hangtag.

8.   The packaging, the owner’s manual and the warning label all must say to read all warnings.

What do you think? Leave a comment.

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By Recreation Law  Rec-law@recreation-law.com      James H. Moss         Jim Moss

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