An amendment to the California Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Prop 65, will become effective August 30, 2018. Changes to the warning methods of products containing chemicals that can cause cancer or reproductive toxicity could impact glass and glazing manufacturers. The American Architectural Manufacturers Association gave a webinar presentation with information about what to expect.

According to John Nolan, an attorney with the Gary Law Group, the amendments will not apply to products manufactured before August 30, 2018. The law falls under the “Right to Know” statute that says it is required to make California consumers aware if a product they are buying will expose them to any potentially harmful chemicals. Prop 65 details how consumers should be warned.

Companies that do business in California, employ ten or more people and are knowingly exposing individuals to cancer-causing chemicals or chemicals with reproductive toxicity are required to comply with Prop 65 and provide a clear and reasonable warning unless the exposure is not a risk. Safe Harbor Warnings can be considered.

“An element of due diligence is required by manufacturers,” said Nolan. “It might be that ignoring the possibility of a product being distributed to California could be construed as willfully ignorant and enough to show a violation.”

Nolan suggested that manufacturers with distributors who sell in or California consider complying with Prop 65.

It is also important to consider product installation exposure. Installation could fall in the range of reasonably foreseeable use of a consumer product. In situations where an installer and end-user could be exposed to the potentially harmful chemical, a warning needs to be visible to both. This could mean including a warning on both the packaging and the product. However, warnings do not need to be permanent.

California has a list of chemicals that are known to be carcinogenic and chemicals with reproductive toxicity. The list also includes known “no significant risk levels (NSRL)” and “maximum allowable dose levels (MADL),” but not all listed chemicals have an associated NSRL or MADL.

If a manufacturer knows a listed chemical exists in a product, but does not know the safe level of exposure posed by a product’s use, Nolan recommends labeling the product.

“Consumer product exposure warnings must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use,” reads the law.

There are several warning methods to choose from:

  • A product-specific warning at the point of display;
  • A product-specific warning via electronic device (automatic) prior to purchase;
  • A product label complying with content requirements in § 25603; and
  • A warning complying with in § 25603 for internet purchases.

The content of these warnings must include the warning symbol, the word “WARNING” in all caps and bolded, language that says “This product can expose you to chemicals…For more information go to” or a short-form warning.

If the product contains multiple listed chemicals, then at least one must be listed. If a chemical can cause both cancer and reproductive harm then both must be listed. If a product contains a chemical that can cause cancer and a chemical that can cause reproductive harm, then both chemicals must be included in the warning. The warning triangle must be as large as the text.