Updates to California's Proposition 65 May Affect Your E-Commerce Business

Jul 31, 2018

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IMPORTANT NOTICE (Google Shopping):

A new attribute for feeds [consumer_notice] is being rolled out by Google as the new Prop 65 regulations will be enforced by August 30th 2018.

Our engineers are adding this new attribute to our Advanced Modify tool to assist retailers in ensuring their feeds comply with the new stipulations. Scroll down further to learn more.

If you’ve ever done business with consumers located in the state of California, you’re probably at least somewhat familiar with Proposition 65 - the law requiring suppliers of products that include potentially hazardous materials to warn their customers of this potential danger.

As familiar as the law might be to you and your company, come the end of August 2018, this might change rather drastically. As you might imagine, failure to comply with these changes can end up causing major problems for your organization.

(Note: Proposition 65 applies not only to companies operating within the state of California, but to any company whose products may end up being sold within the state, as well. This also applies to companies that allow their products to be resold by a third party within the state, too.)

In this article, we’re going to go over exactly what’s going to be changing with regard to the law, and provide some overarching advice as to how to proceed to remain compliance.

First, though, let’s briefly go over exactly what Proposition 65 entails at the current moment.

A Brief History of California’s Proposition 65

Formally known as California’s Safe Drinking Water and Toxic Enforcement Act of 1986,  Proposition 65 has required all companies with ten or more employees to disclose to clients and customers information regarding the presence of hazardous chemicals within their products.

More specifically, Prop 65 has required companies to place warning labels on products and/or product packaging if said product includes chemicals that potentially:

  • Are carcinogenic
  • Could cause birth defects
  • Could cause reproductive harm to expectant mothers

Throughout the years, California’s Office of Environmental Health Hazard Assessment (OEHHA) has continued to add items to its official list of chemicals that may cause these issues to arise. At the present moment, there are over 900 chemicals on this list - with more and more being added on an annual basis.

Now, prior to the changes which will soon come into effect, the requirements for providing such a warning were fairly lax. Basically, suppliers were simply required to warn consumers that a product “may contain a chemical” that “may cause” the above medical issues. That is, the warning did not need to specify which chemical the product includes, how exposure to the chemical might occur, or which specific medical problem the chemical may cause.

(As we’ll discuss momentarily, this led to companies taking a “better safe than sorry” route, in which they would simply place a warning label on any product that may or may not actually have included hazardous chemicals. Needless to say, this practice didn’t exactly help the OEHHA’s cause.)

At any rate, while legislators have introduced amendments to Prop 65 a number of times over the years, many of these suggestions were never voted into law.

That is, of course, until this most recent regulatory change came about.

Recent Changes to Prop 65

Back in August 2016, the OEHHA officially approved Article 6 - Clear and Reasonable Warnings, which, as mentioned above, will go into effect on August 30, 2018.

(A quick note: The new law applies only to products created after August 30, 2018. However, products created before this deadline still need to comply with the previous iteration of the law.)

The rationale behind the adaptation of Article 6 is that:

  • Suppliers will need to provide more accurate and usable information regarding the presence of hazardous chemicals within their products
  • Suppliers will need to use discretion when placing warning labels on products (i.e., they can no longer take the aforementioned “better safe than sorry” route)
  • The state will be able to provide more specific guidelines and information to suppliers regarding what constitutes a hazardous material and how to proceed when warning consumers

As for the changes in requirements, suppliers will need to provide information regarding:

  • Which specific chemical or chemicals are present within a product
  • How exposure to the chemical(s) may occur
  • Which specific medical issue the chemical(s) may cause

Additionally, Article 6 changes the way in which companies are required to word these warnings. Previously, the warning needed to include the phrase “This product contains a chemical that may…”; after August 30, this warning will need to read, “This product can expose you to (name of a specific chemical).

Now, the new regulations do offer suppliers a bit of leniency with regard to listing the hazardous chemicals included in a given product - at least in one way. That is, if a product includes more than one hazardous chemical, the supplier need only provide the name of one of them - while also making it clear that the product includes other chemicals, as well.

However, in cases in which a product includes multiple chemicals that can potentially cause multiple medical issues (e.g., one causes birth defects and another is carcinogenic), suppliers are required to include two warning labels - each mentioning which specific chemical causes which medical issue.

(In instances in which a single chemical causes multiple medical issues, suppliers must still include two warning labels - but can use the same chemical as an example on each label.)

As for the actual appearance of these warning labels, suppliers should use the following templates as guidelines:

Warninglabel

(Source)

As we’ve said, the applicable warning label needs to be clearly visible on the product’s packaging; this likely goes without saying.

However, the new regulations also take into consideration the fact that the modern consumer often makes purchases online - and is therefore often unable to physically view or handle an item purchased online until they actually purchase it.

That being the case, ecommerce companies will be required to include the applicable warning label(s) on their website in a clear and obvious manner. While the way in which such companies do so is left to their discretion, it’s suggested that they display such warnings on:

  • Specific product pages as applicable
  • Their shopping cart page when an applicable item is added to the cart
  • Their checkout page(s), again when an applicable item is being purchased

(Note that it is not sufficient to present these warning labels after a purchase has been made.)

In addition to these warning labels, ecommerce companies must also provide a link to the OEHHA’s official website as applicable, as well. More specifically, companies must provide a link to the actual web page on the OEHHA’s site that pertains to the chemical in question; for example, if a product contains Bisphenol A (BPA), the company would link to this page.

(The OEHHA’s website provides more in-depth information about each of the 900+ chemicals on the list, including how exposure typically occurs, the risks involved with exposure, and precautions to take in order to minimize exposure and/or adverse effects.)

Whether a company decides to use a template (such as the ones mentioned above), or simply retype the warning for each page as applicable, the warning must actually include the word “WARNING,” as well as the following symbol:

Warninglabel2

(Source)

One last thing to mention regarding the actual appearance of these warning labels:

If a company provides communications materials of any kind in more than one language, it must provide warnings in each of the languages it uses. This goes for marketing material, product documentation, assembly instructions...any consumer-facing communications at all.

So, if you have a Spanish version of your website, you must also provide the appropriate warnings in Spanish in all of the instances we mentioned earlier. If your product manual is printed in English, Spanish, French, and German, you must provide these warnings in all four languages throughout your site and product containers.

How Google is Responding

“To assist you in complying with these new requirements, Google will provide additional functionality that will allow you to display a triangular yellow warning symbol and bold Warning on your Product Description Page, followed by warning text that you provide. However, in order for us to serve the warning, we will require you to tag any products in your Product Feed that are subject to compliance with Prop 65 with the consumer_notice attribute the following way:”

File format

Attribute format

Text feeds

prop 65: warning text here

XML feeds

<g:consumer_notice>

<g:notice_type>prop 65</g:notice_type>

<g:notice_message>warning text here</g:notice_message>

</g:consumer_notice>

Content API (JSON)

"customGroups": [

{

   "name": "customer_notice"

   "attributes": [

       { "name": "notice_type", "type": "text", "value": "prop 65"},

       { "name": "notice_message", "type": "text", "value": "warning text here"}

    ]

}

“The attribute supports text in bold, italic and a single line break. Amount of characters for the warning text is limited to 1000.”

Our team is currently adding the Consumer Notice attribute to our native feed tool so retailers can write rules to ensure all products comply with the new regulations.

Who’s All Responsible?

Now that we know what needs to be done with regard to warning consumers about the potential hazards of using certain products, the burning question is:

Who, exactly, do these laws apply to?

While the answer to this question isn’t exactly simple, the explanation is pretty straightforward. Still, it requires that we dive into a deeper discussion on the issue of responsibility.

Initially, it is the responsibility of the manufacturer of a product to disclose which hazardous chemicals - if any - said product may expose the user to. The OEHHA more specifically defines the initially-responsible party as “product manufacturers, producers, packagers, importers, suppliers or distributors.”

These entities must communicate this information to partner retailers in one of two ways:

  • By including the applicable warning labels on the product’s packaging
  • Providing supplemental documentation explaining the presence of a hazardous chemical

In either case, the manufacturer is also responsible for receiving confirmation from a partner retailer that said company acknowledges and understands the warning documentation as provided.

Once this confirmation takes place, responsibility transfers over to the retailer.

At this point, the retailer is responsible for all that we’ve mentioned thus far (such as placing warning labels in the appropriate spots, providing customers with additional resources and information, etc.). In instances in which the manufacturer did not include warning labels (opting to communicate the warning using the second method mentioned above), the retailer will need to affix the appropriate labels onto the product’s packaging before offering it to consumers. And, again, the retailer will need to update its website and product pages accordingly.

Retailers also assume responsibility in the following situations - regardless of whether or not the manufacturer complied with its own responsibilities:

  • If the retailer adds something to the product that includes a hazardous chemical
  • If the retailer’s branded labeling obscures the manufacturer’s warning labels in any way
  • If the retailer knows for certain that a product includes a hazardous chemical - even if the manufacturer didn’t inform the retailer of such

For either party, failure to comply with Prop 65’s mandate will result in civil - rather than criminal - proceedings. According to the Office of the Attorney General of California’s website:

“If a business is found to be in violation of Proposition 65, a court may order the business to stop committing the violation. The business is also subject to civil penalties of up to $2,500 per day for each violation.”

All of this being considered, while instances may certainly arise in which a retailer is truly innocent (in that the manufacturing company failed to inform the retailer of the presence of a hazardous chemical), providing said innocence may require a decent amount of time, money, and energy on the part of the retailer. And, in the unfortunate circumstance that the retailer is unable to prove negligence on the part of the manufacturer, well...the ensuing fines may prove to be quite damaging.

Which brings us to the final section of this article…

How Should You Proceed?

Since your ecommerce company will ultimately be responsible for complying with Prop 65’s mandates, there are a few things to consider moving forward.

First things first, you’ll want to reevaluate your relationships with the manufacturers you partner with - even if these relationships have always been generally positive. This, of course, isn’t meant to be accusatory or anything; it’s just that you want to ensure that your manufacturers are being transparent, open, and honest when it comes to the materials they use when creating their products.

Going along with this, if you suspect that one of your suppliers is being less-than-honest with you, you’ll certainly want to create a dialogue with them in order to straighten things out. If you can’t reach a point of being able to trust the manufacturer, then you should immediately take your business elsewhere.

Another route you might choose to take before severing ties with a manufacturing partner is to have your products tested by a laboratory for hazardous chemicals. While you’ll definitely want to do so if you’re accused of negligence, it may also be beneficial to be proactive in determining for certain what - if any - chemicals a product includes. That said, if you suspect dishonesty on the part of a manufacturer, you might want to contact a lab in order to gain confirmation either way.

(Furthermore, gaining this confirmation will enable you to provide specific information to your consumers - and will also allow you to rest easy.)

Another major factor to consider is the effect the presence of a warning label may have on your customers’ propensity to make a purchase. Depending on your industry, such a label may or may not make certain individuals less likely to go through with a purchase. That said, the onus will be on you to alleviate their worries - typically by providing supplemental information regarding the chemical in question.

With regard to this issue of potentially “turning off” customers, your other option is to determine whether or not it’s possible to have the product in question manufactured in a way that doesn’t involve hazardous materials. Perhaps it’d be possible for your current manufacturer to make these changes, or - again - perhaps you’d need to switch suppliers.

Before you take any of these actions, though, you’ll want to do some cost-benefit analysis. On the one hand, the additional warning labels may be costing you a good amount of potential business; on the other, the cost of switching suppliers or otherwise making changes to your operations will probably be pretty substantial.

(And, of course, there’s always the chance that the product in question simply can’t be created sans hazardous chemicals in the first place.)

All this being said, your best bet is to avoid making drastic changes as best you can - opting instead to comply with regulations as necessary, and to provide your customers with clear and concise information that explains everything they need to know about your product and puts their mind at ease.

Matt Duczeminski

Written by Matt Duczeminski

As one of our Content Superheroes here at Sales & Orders, Matt writes awesome pieces geared towards helping E-Commerce business owners get more out of their marketing.

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