Customer and Distributor Obligations under California’s Proposition 65

As a customer, reseller and/or distributor of products manufactured and/or supplied by INCOM Manufacturing Group Inc (“INCOM”), we hereby inform you of certain obligations you have under Section 25294.6 of the California Health and Safety Code, more commonly referred to as Proposition 65.

 

In pertinent part, Proposition 65 states that, “no person in the course of doing business shall knowingly and intentionally expose an individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”  Cal. Health & Safety Code § 25249.6.  The warning requirement applies to any person employing ten or more employees who manufactures, produces, sells, distributes, or otherwise transfers a product containing one or more of the listed Proposition 65 chemicals into the stream of commerce in California.  Cal Health & Safety Code § 25249.11(b).  The list of chemicals covered by Proposition 65 is available here: https://oehha.ca.gov/proposition-65/proposition-65-list. See also 27 Cal. Code Regulations § 27001.

 

Manufacturers, distributors and other sellers of goods that ship products likely to be placed in the stream of commerce and/or be sold in California must also comply with the warning requirements of Proposition 65.  These warning requirements were recently amended, with the new regulations going into effect on August 30, 2018.  Under the new regulations, Proposition 65 warning labels must contain the name of at least one listed chemical of concern in the text of the warning, along with the “endpoint” associated with the chemical listed (i.e. cancer, birth defects and/or environmental harm), and a triangular warning graphic.  The warning must also be prominently displayed, and must be conspicuous as compared to other words so as to render the warning likely to be read and understood by an ordinary individual.

 

For example, a Proposition 65-compliant warning label for a product containing lead, a substance known to the State of California to cause cancer and birth defects or reproductive harm, might read as follows:

WARNING: This product can expose you to chemicals including lead, which is known to the State of California to cause cancer and birth defects or other reproductive harm.  For more information go to www.P65Warnings.ca.gov.

An abbreviated warning may be used for on-product labels.  An abbreviated warning label for a product containing lead would read as follows:

WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov.

The warning requirements under Proposition 65 vary depending on the method of sale.  For physical product sales, Proposition 65 compliance can be achieved by placing the required warning in one or more of the following locations: on product packaging, in product literature, on the products themselves, or on shelving or other displays where products are placed for retail sale.  For internet purchases, the website selling the product must either display the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or, must otherwise prominently displaying the warning to the purchaser prior to his/her completing the purchase.  If an on-product warning is provided, the internet warning may use the same content as the on-product warning (i.e. the short-form or truncated warning can be used).  A warning is not prominently displayed online if the purchaser has to search for it in the general content of the website. For catalog sales products, a warning must be provided in the catalogue in a manner that clearly associates the warning with the item being purchased.

 

INCOM has taken steps to ensure that all of its products subject to Proposition 65 are labelled and shipped with the required warnings and comply with the recent regulatory revisions.

 

As a downstream customer, distributor, supplier, and/or retailer of INCOM products, we hereby inform you of your independent and separate obligation to provide and/or pass along these warnings for all INCOM products with Proposition 65 warnings that you purchased, or may purchase, prior to or in conjunction with your further sale or distribution of those items.  In addition, as noted above, you should separately provide Proposition 65-compliant electronic warnings for all internet sales of INCOM products with Proposition 65 markings, as well as the appropriate warnings for catalog sales of the same.  A complete listing of INCOM products that require Proposition 65 warnings are available by contacting us.

Please contact us to review INCOM Manufacturing Group items that are impacted by this regulation.