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Notes on Compliance with California Proposition 65 by Alibaba.com members

 

 

Members of Alibaba.com are responsible for complying with all applicable laws and regulations when conducting cross-border transactions on Alibaba.com, including California Proposition 65 (hereinafter referred to as "Proposition 65"). For all existing and newly released listings, members are reminded to please conduct a self-check on whether such listings meet the requirements of Proposition 65.

 

More information about Proposition 65:

[Background Information]

California Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act enacted in November 1986, is a California state law that requires warnings be provided to California consumers when they will be exposed to chemicals identified by California as causing cancer or reproductive toxicity.  The warnings are intended to help California consumers make informed decisions about their exposures to these chemicals from the consumer products they use. Proposition 65 also prohibits California businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.

 

The California Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for administering the Proposition 65 program and may adopt and modify regulations as necessary. The California’s Attorney General is the principal agency that enforces Proposition 65. 

 

OEHHA maintains a list which now contains over 900 naturally occurring and synthetic chemicals that are known to cause cancer or birth defects or other reproductive harm. The list is updated at least once a year.

 

Proposition 65 does not forbid the manufacture and sale of products that contain its listed chemicals, but requires a clear and reasonable warning to any consumer in California exposed to such chemicals.

 

[Scope of Products]

Generally speaking, any consumer products that contain listed chemicals under Proposition 65, and are purchased or used by a California consumer are covered.  The Proposition 65 list contains a wide range of naturally occurring and synthetic chemicals that include additives or ingredients in pesticides, common household products, food, drugs, dyes, or solvents.

You can assess whether a particular chemical is a listed Proposition 65 chemicals through the Proposition 65 List, available at: https://oehha.ca.gov/proposition-65/proposition-65-list.  This link is maintained by California’s OEHHA and provides the searchable database of all Proposition 65 listed chemicals. 

Some of the common consumer products covered by Proposition 65 include, but are not limited to:

  • Tools
  • Food and beverage products
  • Furniture products
  • Toys
  • Electrical products and devices
  • Eyewear and eyeglasses
  • Jewelry
  • Pet products
  • Motor vehicles
  • Beauty and cosmetic products
  • Common household items

 

[Scope of business]

In general, Proposition 65 applies to all businesses in the chain of commerce, including the manufacturer, producer, packager, importer, supplier, distributor, and retailer of a food product.  OEHHA believes that manufacturers have greater knowledge than retailers regarding a product’s chemical content and, as such, the manufacturers should have the primary responsibility for providing the warning.

 

[Regulation Requirements]

Proposition 65 places primary responsibility for providing warnings on product manufacturers, producers, packagers, importers, suppliers and distributors. Generally speaking, a warning for a consumer product can be provided using one or more of the following methods:

1.    A product-specific warning provided on a posted sign, shelf tag, or shelf sign, for the product at each point of display at retail;

2.    A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase, provided that the purchasers do not need to seek out the warning;

3.    An on-product warning.

 

The warning regulations also specify that safe harbor warnings for consumer products are required to say the product "can expose you to" a Proposition 65 chemical. The warnings must also include:

1. A warning symbol with a black exclamation point in a yellow equilateral triangle

2.The word "WARNING" in bold capital letters

3.The full name of the listed chemical subject to warning

4.The address for California Proposition 65 warnings website

(www.P65Warnings.ca.gov)

5.If the consumer information about a product is provided in a language other than English, the warning must also be given in that language in addition to English.
 

Importantly, for internet purchases, a warning must also be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. For example (English version):

WARNING: This product can expose you to chemicals including [name of the chemical/chemicals], which [is/are] known to the State of California to cause (cancer/birth defects or other reproductive harm). For more information, go to www.P65Warnings.ca.gov.

 

[Enforcement of Proposition 65]

The California’s Attorney General is the principal agency that enforces Proposition 65.  In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law.  Indeed, the vast majority enforcement actions are initiated by private litigants – so-called “bounty hunters” who are allowed to recover attorney’s fees and claim part of the civil penalties as their “bounty.”  “Bounty hunter” seeking to sue for failure to warn as required by Proposition 65 must notify the potential defendant and state prosecutors of the alleged violation and its intent to sue 60 days before a suit may be filed.  These 60-day notices are publicly posted on the State’s Office of the Attorney General’s website, available at: https://oag.ca.gov/prop65/60-day-notice-search

In the year of 2019 alone, there are a total of 898 legal settlements related to Proposition 65 enforcement actions.  Penalties for violating Proposition 65 by failing to provide warning can be as high as $2,500 per violation per day.  In practice, an average settlement for an enforcement action related to Proposition 65 violation ranges from USD 30,000 to USD 100,000.

 

[Sample warnings based on product categories]

The following are some examples of CA65 Warnings for specific products: 

 

Alcoholic Beverages

According to the National Cancer Institute and the American Cancer Society, the risk of cancer increases with the amount of alcohol consumed. Even moderate drinking may increase the risk of certain cancers, including breast cancer in women.

The following notice is required:

WARNINGDrinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects.  For more information go to www.P65Warnings.ca.gov/alcohol.

 

Diesel Engine

Diesel Engine Exhaust usually includes Benzene, Carbon Monoxide, Lead and Lead Compounds which may increase the risk of cancer.

The following notice is required:

 WARNINGBreathing diesel engine exhaust exposes you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

  • Always start and operate the engine in a well-ventilated area.
  • If in an enclosed area, vent the exhaust to the outside.
  • Do not modify or tamper with the exhaust system.
  • Do not idle the engine except as necessary.

For more information go to www.P65warnings.ca.gov/diesel.

 

Motor Vehicles / Recreational Vessels

The following notices are required:

 

WARNING[Motor vehicles] contain fuel, oils and fluids, battery posts, terminals and related accessories which contain lead and lead compounds and other chemicals known to the State of California to cause cancer, birth defects and other reproductive harm. These chemicals are found in vehicles, vehicle parts and accessories, both new and as replacements. When being serviced, these vehicles generate used oil, waste fluids, grease, fumes and particulates, all known to the State of California to cause cancer, birth defects, and reproductive harm.

WARNING:Operating, servicing and maintaining a passenger vehicle or off-highway [motor vehicle] can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle.

 

The same format warnings can also be applied to Recreational Vessels by replacing product in the square brackets. 

 

Canned and Bottled Foods and Beverages

Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA.

The following notice is required:

WARNING:Consuming this product can expose you to bisphenol A (BPA), 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/food.

 

Fried, Roasted, Grilled and Baked Food.

This includes but is not limited to baked snack foods, roasted asparagus, roasted nuts, coffee, breakfast cereals, crackers, bread crusts and toast.

Frying, roasting, grilling and baking will make certain plant-based foods produce Acrylamide which may increase risk of cancer and affect the development of the fetus as well as harm the male reproductive system.

The following notice is required:

WARNING:Consuming this product can expose you to Acrylamide, 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/food.

 

Eyewear and Eyeglasses

The state of California has released a safety test for the use of BPA in polycarbonate glasses. Using acetonitrile as a solvent on the legs, nose pads, frames and lenses of the eyewear products, based on BPA evaluation, gives an exposure estimate over the maximum allowable dose level (MADL) of 3 g/day (solid material in contact with skin) will require a California Proposition 65 warning label.

WARNING:Consuming this product can expose you to bisphenol A (BPA), 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.

 

Toys

The following notice is required:

WARNING:This product can expose you to chemicals including [name of the chemical/chemicals], which [is/are] known to the State of California to cause (cancer/birth defects or other reproductive harm). For more information, go to www.P65Warnings.ca.gov.Machines and Tools

Drilling, sawing, sanding, and other construction activities may cause dust and contain chemicals which include but not limited to Lead, Arsenic and Chromium. The risk varies from different chemicals and frequency of such activity.    

E.g. Tools used to cut or shape timber and other wood materials will create wood dust. Exposure to wood dust in certain amounts on a recurring basis can cause cancers of the nose, throat, and sinuses. The following notice is required for such product:

WARNING:Drilling, sawing, sanding or machining wood products can expose you to [wood dust], a substance known to the State of California to cause cancer.  Avoid inhaling [wood dust] or use a dust mask or other safeguards for personal protection.  For more information go to www.P65Warnings.ca.gov/wood.

The same format of warnings can also be applied to other harmful dust by replacing the substance in the square brackets. 

 

Cosmetic and Beauty Products

In the United States, the Food and Drug Administration (FDA) has restricted a series of chemicals and color additives from being used in cosmetics as described in regulatory document Title 21 Code of Federal Regulations (CFR). Nonetheless, Cosmetic and Beauty Products still may contain ingredients which may cause cancer and birth defects or other reproductive harm. 

E.g. Some skin creams used for skin-lightening, anti-aging, and acne treatment contain Mercury; and DBP can be absorbed into the body through contact with DBP-containing cosmetics

For these kinds of product, please follow FDA rules and list out product ingredients accordingly. Any chemicals which fall under the list of California Proposition 65 will require a notice in the following format:

WARNING:This product can expose you to chemicals including [name of the chemical/chemicals], which [is/are] known to the State of California to cause (cancer/birth defects or other reproductive harm). For more information, go to www.P65Warnings.ca.gov.

 

Furniture Products

Some furniture are made from / contains chemicals on the Proposition 65 list, like Formaldehyde, Chlorinated Tris, Tris(2-chloroethyl) Phosphate (TCEP), Antimony Trioxide, etc. Some of these chemicals can be gradually released from the furniture into the air and can accumulate in dust. You can be exposed to these chemicals when you use the furniture, or when you breathe the air or come into contact with dust containing these chemicals.

The following notice is required:

WARNING:This product can expose you to chemicals including [name of one or more chemicals known to cause cancer, name of one or more chemicals known to cause reproductive toxicity, or name of one or more chemicals known to cause both cancer and birth defects or other reproductive harm], which is [are] known to the State of California to cause cancer or birth defects or other reproductive harm.  For more information go to www.P65Warnings.ca.gov/furniture.

 

Healthcare Supplement

Healthcare Supplement may be regarded as “food” or “drugs” under FDA control, for either type, please list out the product ingredients according. Any chemicals which fall under the list of California Proposition 65 would require a warning notice in the following format:

WARNING:This product can expose you to chemicals including  [name of the chemical/chemicals], which  [is/are] known to the State of California to cause (cancer/birth defects or other reproductive harm). For more information, go to www.P65Warnings.ca.gov.

 

Electrical Product and Devices

Parts of Electrical Product and Devices may contain chemicals increasing cancer risks and other health problems. E.g. Lead batteries contains Lead/Lead compound, and electrical cords may also contain harmful chemicals.

The following notice is required:

WARNING:The [Parts of the electrical products] of this product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. Wash hands after handling.

 

Petroleum Products

The following notice is required:

 WARNING:Crude oil, gasoline, diesel fuel and other petroleum products can expose you to chemicals including toluene and benzene, which are known to the State of California to cause cancer and birth defects or other reproductive harm.  These exposures can occur in and around oil fields, refineries, chemical plants, transport and storage operations such as pipelines, marine terminals, tank trucks and other facilities and equipment.  For more information go to: www.P65Warnings.ca.gov/petroleum.

 

[Applicable Regulations]

For more information about California Proposition 65 is available at the following government websites:

v Proposition 65 Law and Regulations: https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations

This link maintained by California’s OEHHA provides the statue and the implementing regulations for Proposition 65. 

v Sample Warnings and Translations For Businesses: https://www.p65warnings.ca.gov/sample-warnings-and-translations-businesses

This link maintained by California’s state government provides examples of Proposition 65 warnings.   

v Proposition 65 Enforcement Reporting: https://oag.ca.gov/prop65

This link maintained by California’s State Attorney General provides access to 60-day notice database as well as annual settlement reports, regulations and letters issued by the State Attorney General’s office related to Proposition 65 enforcement. 

Please note that the above information does not constitute legal advice and shall not be deemed as represent the legal opinion or conclusion of the regulatory body. Besides, Alibaba.com does not undertake or warrant that the information represents the latest laws and regulations. For specific information, members are recommended to consult the competent authority, your independent legal advisors, or third-party certification/testing/consulting companies in the relevant country or region.

 

Alibaba.com
June 16, 2021

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