For those not living in California, you may have occasionally noticed some products you purchase include a “California Proposition 65” warning label or statement which often includes the following subtext “…contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm…”
Currently, the state of California has identified over 850 chemicals in products that should trigger a Proposition 65 (“Prop 65”) warning label on a product. Prop 65 does not ban or restrict the sale of products with chemicals on the list but requires disclosure of their existence.
But, even before this “coffee is bad for you” warning, California already was working on changing the regulation to provide better and more detailed information to consumers.
For example, before the update, a company did not have to disclose the actual chemical that prompted the use of the Prop 65 warning. But after August 30, products must contain language that at least mentions one of the listed chemicals.
The primary purpose of the update to Proposition 65 warnings is:
- Making warnings more meaningful and useful for the public
- Reducing “over-warning” in which businesses provide unnecessary warnings
- Giving businesses clearer guidelines on how and where to provide warnings.
Will This Impact Me?
This is where it gets a bit tricky. All sellers and retailers located in California are affected by Prop 65 warnings and including those warnings in eBay listings (or other marketplaces and websites) may be one of many ways to inform the public.
Under the new regulations, manufacturers have the primary responsibility to provide Prop 65 warnings, but can opt to “enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before he or she is exposed to a Proposition 65 chemical.”
In that case “Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.”
For online merchants who sell products from name brand manufacturers, those manufacturers will likely take care of the Prop 65 warnings.
One small note of caution here, California online retailers need to make sure they are purchasing products from the manufacturer or distributor that includes those warnings as some manufacturers could opt to sell products in packaging labeled for California and in packaging labeled for other destinations.
For California-based online merchants who produce their own products or sell their own branded products produced by a third party, those sellers may have to comply with Prop 65 if their business has 10 or more employees.
What About Out-Of-State Sellers Selling Into California?
According to California’s Attorney General, out-of-state manufacturers and retailers are required to comply with Prop 65 warning labels when sending products to California.
Therefore, a business that sells online that has more than 10 employees and produces or brands their own products probably should consider California Prop 65 labeling on their products, if warranted.
eBay’s New Item Specific
While the update to the Prop 65 has not really changed the legal requirements and most of the information provided here already applied to online sales, the new requirement of the warning icon and listing at least one specific chemical appears to have prompted eBay to add an items specific to its platform to include Proposition 65 warning information.
To make it easier for sellers to adhere to Prop 65 regulations, eBay rolled out a new item specific when creating listings.
For sellers that use third-party listing services such as InkFrog or SixBitSoftware, they should contact their service provider to find out when and how this Proposition 65 warning will be enabled.
The updated regulations go into effect on August 30. To learn more about California Proposition 65, check out these resources from the state:
Will this new update to Proposition 65 affect your business? Head over to our Facebook Discussion Group or use the comments section below.
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