Proposition 65 Q&A with Shawn Stevens, Food Industry Counsel

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Below is a transcript of Q&A’s from exclusive webinars conducted with Shawn. For the full recorded replays and copies of the presentations, please visit our Webinar Archive here.

Q: What is the Prop 65 warning label detail that needs to be applied to all containers that require the notice, such as font type, size, color, etc.? Can they be found somewhere?

A: Yes, all the details can be found in the regulations under Prop 65. If you go to section 27 CCR 25607.2, you’ll find the specific requirements for the language and what the labels should look like.

Q: Is the caramel coloring (furfuryl alcohol) included on the list?

A: Yes, it is. There is no maximum risk level or dose level set, so as of right now the permissible level is zero.

Q: As a co-packer, what responsibility do we have for the labeling on our customer’s products?

A: You have equal responsibility. In the eyes of the Prop 65 law, they don’t care so you’re equally as liable in the case of a lawsuit. A suggestion would be to have an agreement in place with your co-packer/partner that they will indemnify you in the case of any lawsuit or settlement costs so you’re not at risk.

Q: There are recent 60-day notices against meat snacks (jerky treats) that are regulated by the USDA. Any comment on that?

A: Without seeing the products themselves, I can’t say it’s a USDA product or not. If it is, then that company has a very strong defense that nothing can be imposed that isn’t required by federal law. The company in question should probably draft a strongly worded letter sent to the plaintiff lawyer requesting them to withdraw the 60-day notice and go away.

Q: Doesn’t the State of California also get a percentage of the settlements from Prop 65 lawsuits?

A: Yes. Ballpark numbers of settlement payouts from last year’s Prop 65 lawsuits were around 20 million, 5 million of which went to the State of California so they get their cut. But the real winners are the plaintiff lawyers when it comes to who gets the most financially out of these lawsuits.

Q: Prop 65 only applies to companies with greater than 10 employees. So if you demonstrate that you have fewer than 10 employees, does the law apply to you?

A: No, you do not. If you fall under that threshold, the requirements do not apply to you.

Q: Does the new warning label format require the yellow exclamation point?

A: Yes and no. Under the new Prop 65 law, there is a requirement to have the new warning triangle that accompanies the word “warning” in bold and the warning verbiage. For food products, that triangle is not required; they are excluded.

Q: Are the warning labels required on cans?

A: Warnings must be on the label.

Q: If you are a raw materials supplier, how are you required to label your outgoing product?

A: There’s no requirement under California law, but if a manufacturer is sued because of an ingredient you supplied and you didn’t provide a warning, then they may say they had no idea and you will have liability under common law if not Prop 65 law. You may have contract or warranty exposure in that case.

Q: If a producer has two products and one contains a carcinogen, is it ok to just list the warning for one on the label or is it required to include it for both?

A: On the warning label if there are multiple chemicals, it is ok to just list one.

Q: Some of the big companies don’t include warning labels on their products. How is that possible?

A: These companies may have undertaken significant efforts to establish that their products fall well below the safe harbor limits and can show that their products are not harmful and in violation of requiring warning labels. It is still highly advisable to always err on the side of safety and include labels wherever possible.

Q: Our packaged products carry the same attributes as raw potatoes. Are warning labels required for raw potatoes in the produce section?

A: No, they are not.

Q: Absence of a contract, is there any common law theory to have a supplier pay damages?

A: Yes, if the supplier was well aware that the product contained a chemical, that it would be sold to California consumers, and that their customer didn’t have that knowledge, then there’s an argument to be made there is a duty to let their customer know what’s at risk. It depends a lot on the circumstances.

Q: Could you cover some best practices for in-store signage and/or point of sale signage?

A: In-store we’re moving towards point of display/point of sale for signage. Must be in eyeline sight of the customer and easily understood. It’s also recommended now to include Spanish versions of the warning in the signage so customers who don’t speak or read English can understand it.

Q: Say we had a 20-foot shelf section of potato chips, would we need more than one point of display sign to fall within your “arms reach” standard or would we be okay to just have one sign per category?

A: The question is what is defensible. Ask yourself what would 12 jurors think? It’s advisable to err on the side of safety so perhaps agree to three signs, one at each end and one in the middle.

Q: What if a PL (private label) manufacturer refuses to include Prop 65 warnings? Recommendation?

A: First strategy is to get rid of the supplier. If that’s not an option, then the second strategy is to put a point of display warning where that product is sold.

Q: Many suppliers have been less than responsive to Prop 65 inquiries thus far, so with the deadline approaching will multiple inquiries be enough to show due diligence?

A: It comes down to educating and asking. Ask the questions but also require signatures, then add the acknowledgement that if the info being provided from suppliers is wrong then there is an indemnification to protect you. If you’re persistent and present it in this way then it makes it harder for suppliers to be unresponsive.

Q: Do Prop 65 warnings need to be provided on Digital Menu Boards or on handheld or takeout menus?

A: Yes, it’s advisable to have the warning in small print somewhere on the menus so it’s visible to the customer and can be easily read.

Q: Is it true that we can use an alternate short statement instead of the whole warning statement on the packaging of our product?

A: Although Proposition 65 does have some provisions which permit the use of a short form warning for consumer products generally, there are specific provisions governing product and shelf-tag warnings for food that do not provide a short-form option. Thus, it would likely not be allowed.

Q: Does a manufacturer have to worry about practices of retailers assuming they are not selling it themselves?

A: If a manufacturer puts a warning on the product, the manufacturer should be covered regardless of the retailer’s conduct.

Q: Is the coffee industry now going to label all packaged coffee with warning labels?

A: Although the case is ongoing, and in the future there may be appeals as a result of the judgment, I predict all coffee products will now include warnings.

Q: Is there any verbiage in Prop 65 that addresses the accessibility of the chemicals? We have failed tests because there is a chemical banned in Prop65 in an inaccessible part of the product.

A: No that I’m aware of. The standard is whether the use of the product is reasonably likely to expose the consumer to the chemical.

Q: You mentioned that you can label all products with the warning. Based on new requirements where you must list a physical chemical, can that still be done starting in August or do testing results need to be reflective of what you are listing on the warning label?

A: Yes, that can be done beginning August 30, 2018.

Q: How can we determine whether chemicals on the Prop 65 list are present or can be formed in the use of our product?

A: I would look to partner with a third-party laboratory that can analyze your product and let you know whether any chemicals may exist in your products.

Q: Where can I find guidance as to the specific locations on retail packaging where warning statements can be printed?

A: See 27 CCR section 25603.1

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