Historically, the bulk of Prop 65 actions have come from plaintiff attorneys sending waves of people into retail stores in California to purchase and then test products for possible exposures to listed chemicals. This paradigm is shifting increasingly to a new pattern of plaintiff behavior: scouring websites for possibly non-compliant products that are sold and shipped to California addresses. While statistics on the source of alleged Prop 65 violations are not available, it is clear from experience, at least anecdotally, that perhaps a majority of new cases are instigated by on-line sales.
Companies that may not consider themselves to be “selling in California” very often are, at least from a Prop 65 perspective. Unless your company strictly limits distribution and sale to places outside of California, you may end up in the Prop 65 web. And internet sales are the easiest way for a Prop 65 plaintiff to track you down.
The recent amendments to the Prop 65 warning regulations provide compliance guideposts for the sale of products on-line that may result in exposure to listed chemicals. For an internet purchase to qualify for the “safe harbor” warnings prescribed in the new regulations (i.e., for the warning to be presumed compliant), a business must provide either the warning statement or a clearly marked hyperlink using the word “WARNING” on the website product display page, or otherwise prominently display the warning to the purchaser prior to completing the sale. Guidance from the Prop 65 implementing agency, the Office of Environmental Health Hazard Assessment (OEHHA), earlier this year clarifies that in addition to the website warning, the consumer also must receive the warning through the traditional methods related to sale of consumer products — meaning that a warning must appear on the product label (on the product itself or its immediate packaging/container) as well as be delivered prior to completion of the on-line sale.
In short, if you do any business on-line, your company should be thinking about Prop 65 and the tangled web it weaves for any product that may end up within California.