Upcoming regulation will impact warnings for food and alcoholic beverage products.

By Michael G. Romey, Lucas I. Quass, and James A. Erselius

Latham’s previous blog posts provided an overview of some of the significant changes that will occur as a result of the new California Office of Environmental Health and Hazard Assessment (OEHHA) regulations (the 2016 Regulations) to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65). This blog post focuses on the implications the 2016 Regulations have for food and alcohol sales, whether in restaurants, bars, packaged food ordered online, or packaged food purchased in-store. Each of these categories requires slightly different content for the Prop 65 warning. See Cal. Code. Regs. tit. 27, § 25607.1−25607.6 (2016). The updated regulations aim to provide consumers with information about products they might consume, so they can make educated decisions about consumption.

This blog post is part of a continuing series covering issues that may arise when the 2016 Regulations become effective on August 30, 2018. The 2016 Regulations only apply to products manufactured after the operative date of August 30, 2018. In addition to this blog post, the series has included the following:

  • Part 1 addressed the 2016 Regulations’ warning requirements for online and catalog retailers
  • Part 2 reviewed implications for upstream entities that may be required to shoulder more responsibility in the warning process after August 30
  • Part 3 addressed how the upcoming regulation will change the substantive components of Prop 65 warnings

Food Warnings

Warnings for food products, including dietary supplements, are similar to normal consumer product warnings. Distributors, suppliers, manufacturers, producers, packagers, and importers (Upstream Entities) have the same options for issuing a clear and reasonable warning to the consumer before purchase, consistent with the existing Prop 65 regulations. Upstream Entities may:

  • Use signs, shelf tags, or shelf signs near where products are displayed
  • Use electronic methods to provide the warnings
  • Label products with a full warning
  • Use the short-form warning on a product (in limited circumstances)

See Id. §§ 25602, 25607.1(a).

Regarding food product labels, Prop 65 warnings must be placed inside a box and must be “set off” from other product information. Id. § 25607.1(b). Food products also require the use of alternative language warnings if multiple languages are used on the product label. Id. § 25607.1(c).

The safe harbor language used for food products includes two changes to the typical consumer product safe harbor language of Prop 65. The word “Consuming” is added prior to “This product can expose you,” and the website included with the warning must be specific to food. Id. § 25607.2(a).

Alcohol Warnings

Upstream Entities may choose from several alternatives to provide Prop 65 warnings for alcoholic beverages. Depending on how the entities sell alcohol, some of these options may not be available:

  1. Post a sign at the entrance: This alternative requires an 8½ by 11-inch sign in no smaller than 22-point type, placed at eye level so that the sign is readable and conspicuous to customers as they enter the area or areas where alcoholic beverages are served. Id. § 25607.3(a)(1).
  2. Post a sign by the register: This alternative requires a notice or sign no smaller than 5 by 5 inches placed at each retail point of sale or display so that the sign is readable and conspicuous. The warning message must be in a type size no smaller than 20-point type and must be enclosed in a box. Id. § 25607.3(a)(2).
  3. Provide a warning in the menu, if alcohol is consumed on the premises or sold through an over-the-counter service: This alternative requires providing a warning on a menu or list identifying the alcoholic beverages served on the premises. If there is no menu or list identifying the alcoholic beverages served on the premises, then the warning message can be provided on the menu or list identifying the food or other beverages sold on the premises. Id. § 25607.3(a)(3).
  4. Provide a warning in or on the package, if ordered through package delivery service: The warning must be placed in or on the shipping container or package. The warning message must be presented in a type size as least as large as the largest font used for other consumer information on the product, and can never be smaller than eight-point font. The warning must be conspicuous and readable to the consumer before the consumer ingests the alcohol. Id. § 25607.3(a)(4).

The content of Prop 65 warnings for alcoholic beverages must include both cancer and birth defects warnings. However, the safe harbor language for alcoholic beverages does not require the identification of a specific chemical. Id.

Restaurant-Specific Requirements

Restaurant service of food and non-alcoholic beverages for immediate consumption also requires specialized Prop 65 warnings. The content of the warning for these sales is specific, with exact language provided in the regulations. Id. § 25607.6(a). The requirement that the warning must be provided in English and in any other language used on other signage or menus provided on the premises also applies here. Id. 25607.5(b).

As with alcohol, restaurants can give these warnings in three different ways:

  1. Post a sign at the entrance: This alternative requires providing a readable and conspicuous 8½ by 11-inch sign at each entrance to the restaurant where food and non-alcoholic beverages may be consumed. The warning on the sign must be printed in at least 28-point font. Id. § 25607.5(a)(1).
  2. Post a sign by the register: Readable and conspicuous notices or signs of at least 5 by 5 inches may be placed at all applicable points of sale. Id. § 25607.5(a)(2).
  3. Provide a warning in the menu: Restaurants can place warnings on any menu that describes the food and non-alcoholic drinks available for sale. If a restaurant chooses this option, the font size of the warning must be at least as large as the largest font size used for the names of menu items. Id. § 25607.5(a)(3).

Next Steps

The 2016 Regulations are effective on August 30, 2018. Restaurants and companies in the food processing business should take note of the 2016 Regulations, as warnings previously used will not meet the safe harbor requirements. Upstream entities selling food and beverages not for immediate consumption should review their terms and conditions with retailers and update them as needed to ensure compliance with the 2016 Regulations. Restaurants in California should review their existing Prop 65 compliance strategy and update it in light of the 2016 Regulations.

For any questions regarding the effects of the 2016 Regulations on your business, please contact one of the authors or the Latham lawyer with whom you normally consult.

This post was prepared with the assistance of Abby Timmons in the Orange County office of Latham & Watkins.