Online alcohol sellers should ensure compliance with the new Prop 65 warning label requirements.

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

On August 30, 2018, new regulations governing the implementation of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) went into effect. The new regulations apply to all products manufactured after that date and require updated warnings that must appear on product labels in addition to other substantive changes. For an overview of the amendments, please refer to Latham’s four-part “How To Prepare” blog series. One provision of the recent amendments, concerning the warning requirements for the sale of alcoholic beverages, has triggered a notices of violation. In the first quarter of 2019, more than 50 notices alleging failure to comply with Prop 65 have been sent to online retailers of alcoholic beverages.

Under the amended Prop 65 regulations, online retailers must now prominently display Prop 65 warnings to California consumers for all appropriate products before a purchase is completed online (as discussed in a previous post).[i] For example, sellers of alcoholic beverages must now include the following alcohol-specific warning:

WARNING: Drinking 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.[ii]

Notably, while this safe harbor language must include both cancer and birth defects warnings, it need not identify a specific chemical like other product-specific warnings.

Companies that sell alcoholic beverages over the internet or a phone-based application have several options to comply with Prop 65’s alcohol-specific warning. As summarized in a previous post, the new regulations specify the following methods with which online retailers may provide Prop 65 warnings to California consumers[iii]:

  • Include the entire Prop 65 warning on the product display page
  • Embed a clearly marked hyperlink on the product display page that uses the word “WARNING” and leads to the Prop 65 warning
  • Include the Prop 65 warning in the customer’s online shopping cart as part of the check-out process

In most cases, compliance is straightforward but may require action on the part of online retailers to achieve compliance with Prop 65. Failure to comply with Prop 65 may come with fines and penalties. For any further questions about how the Prop 65 regulations apply to internet sales, please contact one of the authors or the Latham lawyer with whom you usually consult.

[i] Cal. Code Regs. tit. 27, § 25602(b).
[ii] Id. at § 25607.4.
[iii] Id. at § 25602(a).