STiR coffee and tea magazine

28 STiR coffee and tea / Issue 3, 2018 (June / July) Notably, however, unlike the existing warning regulations, the new ones present the possibility of liability even when a warning is provided since there is, arguably, a lot of potential for error. In turn, the industry can reasonably expect a substantial in- crease in the number of private enforcement cases after 8/30. The new provisions make navigating Prop 65's safe harbor warnings more complex and leave room for missed warnings or those which are not technically compliant. However, packagers are not overly worried since Prop 65 has been influencing packaging material design for many years. Packagers also need to remain FDA compliant, which keeps them vigilant about substances used in their products. According to Lou Dolgin of American Packaging, the company monitors the continuous changes to regulations and works with its supply chain to keep potentially harmful ingredients out of its packaging. Ramping up Until Aug. 30, current labeling rules still apply, al- though many affected parties have already begun adopting the new protocols. And, existing labeling for products already in the stream of commerce are specifically exempted. However, with only four months to go, and ea- ger litigation attorneys poised to pounce, it's high time to retrench and retool to avoid being caught unprepared on Labor Day. So, coffee manufactur- ers, packagers, and retailers would be wise to take steps now to ensure their warnings comply with the new Prop 65 requirements before their products go on the shelves. After all, the safe harbor warnings are an effec- tive way to preempt being drawn into costly litiga- tion from so-called "consumer advocacy groups." If a company sells products without the new warnings after 8/30, they could spend a lot of time and money parsing the new rules and risk the serious conse- quences of non-compliance. And, the stakes are high. Out of 333 judgments in 2017, total penalties amounted to more than $167 million. Yet, it's hard to avoid Prop 65's reach, even for businesses located outside California. As the sixth largest economy in the world, it's an aw- fully big market to pass up. But, come summer's end, keeping those revenues in the bag will take extra attention to what's in it and what it's made of. Regarding bisphenol-A in canned foods and beverages, California issued separate provisions via an emergency rulemaking in April 2016, the first to re- quire the identification of the chemical. Under those rules, retailers needed to post warning signs that identify BPA by name and disclose that California has determined that it causes harm to the female reproductive system. With the in- troduction of the new warning protocols effective 8/30, the rules for BPA are handled by the new regulations. Ironically, while the new regulations aim to limit their liability, retailers be- come subject to warning requirements if they introduce a listed chemical into the product. Presumably, that would include retailers who roast coffee onsite – mom- and-pop cafés, independents, and specialty chains – who could find themselves on the wrong side of Prop 65 if they haven't labeled. Their operations could be construed as introducing the substance – either through the roasting itself or by the packaging of beans in the store, or both. Radical changes A comparison of the current warning and the series of new warnings points up the degree of detail and potential confusion posed by the new regulations: • Current: "WARNING: This product contains a chemical known to the State of California to cause cancer" or "WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm." • New, long-form warning - The word WARNING in all caps and bold, plus: - Carcinogen: Consuming this product can expose you to chemicals in- cluding [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www. P65Warnings.ca.gov/food - Reproductive Toxicant: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproduc- tive harm. For more information go to www.P65Warnings.ca.gov/food - Both: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of Cali- fornia to cause cancer and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food - Listed as both: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] 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. - For a single chemical, "chemicals including" may be deleted. • New, short form: - Carcinogens: "Cancer – www.P65Warnings.ca.gov" - Reproductive toxicants "Reproductive Harm – www.P65Warnings.ca.gov" - Both "Cancer and Reproductive Harm – www.P65Warnings.ca.gov" Moreover, manufacturers, packagers, and retailers must all review their In- ternet presence to add warnings for Prop 65-affected products. Warnings are now expressly required on the company's website either by posting the warning or a clearly marked hyperlink using the word "WARNING" on the product display page. Alternatively, the warning must be prominently displayed before the buyer completes the online purchase, such as a pop-up when the buyer enters a Cali- fornia zip code. The new regulations also require Prop 65 warnings in catalogs in a manner that clearly associates it with the item being purchased.

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