California Proposition 65 Warning Requirements Effective January 3, 2021
By Andrea Golan
Oct 1, 2020
If you sell products to California consumers that contain delta-9 THC or that can expose individuals to cannabis smoke, those products require a Proposition 65 warning.
Exposure to Cannabis Smoke
Cannabis smoke has been on the Proposition 65 list as a chemical known to cause cancer since 2009. As we previously discussed in the article "Prop 65 Warning Requirements for Cannabis, THC, and CBD," California’s Office of Environmental Health Hazard Assessment (OEHHA) added cannabis smoke as a ‘reproductive toxin,’ meaning a Prop 65 warning statement must include both cancer and reproductive harm.
Note that this requirement applies not only to flower and other cannabis products that are inhaled, but also to smoking accessories that could, through reasonably foreseeable use, expose individuals to cannabis smoke. This means accessories used for smoking such as pipes, water bongs, rolling papers, vape products, and their subparts also require a Prop 65 warning for California consumers.
Products Must be in Compliance by January 3, 2021
Businesses have until January 3, 2021 to comply with the listing requirement. There is an important caveat to this grace period: If your product enters the stream of commerce prior to January 3, 2021 without the required warning and is placed on the retail shelf on or after January 3, 2021, your business is at risk of facing a Prop 65 enforcement action. These lawsuits can be brought by private plaintiffs or by government agencies.
Prop 65 allows the state to pursue enforcement actions, and fines can be up to $2,500 per day per violation. In reality, Prop 65 violations are generally enforced by private plaintiffs who search for violations immediately after the grace period on a newly listed chemical expires. Prop 65 warnings should be added early, and if your products end up on store shelves without the required warnings, be sure to work with distributors and retailers to put warnings in place.
Internet Warnings Also Required
Products sold online to a California consumer must also include a Prop 65 warning in addition to the warning on the actual product. The warning must be clearly associated with the product being purchased.
Contact Vicente Sederberg’s experienced regulatory counsel prior to creating packaging or labeling to ensure compliance with Prop 65 and other labeling requirements.
OEHHA proposed significant changes to its short form warning requirements in January 2021. Read more about the proposed changes to Prop 65 short form warning requirements.