Prop 65 Warnings Streamlined for Alcohol Beverages Sold Online
California’s Proposition 65 warning regulations were recently amended to modify the delivery of the required state warnings for alcoholic beverages. The modified regulations somewhat ease compliance, as they will now allow for the required warning to be provided to the customer electronically for alcoholic beverages ordered online or via catalog. However, they muddle the standard for other orders that are placed for delivery.
Proposition 65, adopted in 1986, generally requires in California for a statement to be provided before the purchase of products that contain certain chemicals that may cause cancer or reproductive toxicity. Stores are generally required to post signs along-side listed products. The warning methods and language are product-specific, but there is also a requirement that, for products that are sold on line, the warning be provided via electronic device to the customer, without requiring the purchaser to seek out the warning, prior to or during the purchase of the product. Under the existing regulations for internet purchases of products, including alcoholic beverages, the warning or a clearly marked hyperlink using the word “WARNING” must be provided on the product display page or by otherwise prominently displaying the applicable warning to the customer prior to completing the purchase on the website. This rule is not changing.
In addition to the warning on the website, a copy of the alcohol beverage exposure warning was also required to be included on or in all alcohol packages when delivered in California. This portion of the rule is changing, making it easier for online orders, but more convoluted in the case of orders placed other than via the internet or catalog.
Going forward, for an order that is to be delivered to customers in California at a location other than the point of sale that is not made online or from a catalog – for example, for wines ordered in a tasting room for delivery to the customer at another location within California – the product-specific warning must be provided prior to or during the purchase of the wines. The regulation does not specify how the warning must be provided however, but presumably notice should be provided by signage similar to in-store sales, a printed warning on a sales document, or – although not spelled out specifically in the regulation –verbally for phone orders. The regulation is specific though that the warning be provided prior to or at the time of the purchase – not at the time of delivery as was the case previously.
While such transactions are now less clear, with respect to internet or catalog orders of alcoholic beverages, the warning has gotten simpler to deliver. The prior method of a warning on or in the package is still allowed, but the rule has been streamlined to instead allow the required warning to be included in an email or text message with the purchase confirmation rather than having to be printed and included with the shipment. Providing the warning as part of the electronically delivered receipt or confirmation should simplify shipping and can potentially reduce liability for inadvertent warning omissions in shipments to California.
All businesses that employ more than 10 employees that produce or sell alcoholic beverages to consumers in California are subject to Proposition 65 and must be in compliance with the modified regulations by April 1, 2021. Because the definition of “employee” under the regulations is imprecise, we recommend that all applicable Proposition 65 warnings be complied with, even if a winery or retailer has fewer than 10 employees.
For more on this and related issues, please contact Josh Devore.
Prop 65 Lawsuit – Where Are We, How Did We Get Here And Where To Now?
You have seen the signs all over California; they exist on parking garages, gas stations, office buildings and convenience stores: “Warning, this area contains a chemical known to cause cancer or birth defects.” These signs exist because of Prop 65, which California voters enacted in 1986. It was originally presented as a way to prevent contamination of drinking water, but Prop 65 warnings have come to apply to thousands of products throughout the state, including alcoholic beverages.
The settlement of a recent Prop 65 lawsuit in Southern California has raised significant attention among the alcoholic beverage industry. The Wine Institute worked in tandem with the named defendants in that action to help settle the suit in such a way that producers not named in the suit can benefit from the settlement at a modest, albeit distasteful, cost. The Wine Institute recently notified its members about that suit and the settlement, and that notification has sparked considerable on line debate.
How did we get here?
The Wine Institute bulletin letter to its members describes the background of this issue as follows:
“Background: Proposition 65 is a California law that requires companies producing designated products containing chemicals that the State believes cause cancer, birth defects or other reproductive harm, to inform California citizens about exposure to such chemicals. Alcohol is one of the designated products, which means you may not sell alcohol in California without providing this warning to customers before they make a purchase:
‘WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.’
Many companies that are subject to Prop 65 warning requirements put the requisite warning on their product, but alcohol warnings are different. When Prop 65 first went into effect, the State agreed that in lieu of putting that warning on bottles, cans or packaging, the beverage alcohol industry could provide free Prop 65 signs for California retailers to post. For the last 29 years, the beverage alcohol industry has spent considerable sums providing Prop 65 alcohol warning signs to retailers, and many of you have contributed to Sign Management Company to pay for your fair share of the program costs. Unfortunately, the law as written says that the producer, not the retailer, has the legal responsibility to make sure there is a warning sign actually posted for customers to see, and some retailers do not like posting the signs.”
(A full copy of the Wine Institute member bulletin can be found on line here.)
Are wine producers really responsible for retailer signage?
We have heard that some winery owners—who are understandably reluctant to pay the fees and annual contributions required to opt in to the settlement—are under the belief that if they place a Prop 65 warning label on their bottles, they will avoid liability if a retailer fails or refuses to post the required warning signs. Unfortunately, even if producers place warning labels on their bottles, they may still be liable, particularly in cases where retailers are selling wine for on premises consumption (which was the case in the recently settled lawsuit).
The statute and regulations require that Prop 65 warnings must be “clear and reasonable” and “likely to be read and understood by an ordinary individual under customary conditions of purchase or use.” (Cal. Health & Saf. Code § 25249.6; Cal. Code Regs. tit. 27, § 25603.1.) The regulations implementing the Prop 65 statutory scheme require that where alcoholic beverages are sold by retailers for consumption on or off premises, signage, not bottle labels, of a specific size and type must be posted in one or another described location at the retail outlet, such as on tables, menus, or at the retail entrance. (Cal. Code Regs. Tit. 27, § 25603.3(e).) The responsibility for ensuring compliance with this signage requirement rests with the producer or its distributor, not the retailer:
“7. For alcoholic beverages, the placement and maintenance of the warning shall be the responsibility of the manufacturer or its distributor at no cost to the retailer, and any consequences for failure to do the same shall rest solely with the manufacturer or its distributor, provided that the retailer does not remove, deface, or obscure the requisite signs or notices, or obstruct, interfere with, or otherwise frustrate the manufacturer’s reasonable efforts to post, maintain, or periodically replace said materials.” (Cal. Code Regs. Tit. 27, § 25603.3(e)(7).)
In 2012, two plaintiff’s attorneys in Southern California (often referred to as “Bounty Hunters”) located restaurants in Southern California that did not have Prop 65 signs posted, so those attorneys pursued Prop 65 actions against them.
As a result of the outcry resulting from those actions, last October, the Governor signed AB 227 to protect certain businesses, like restaurants, that had not complied with Prop. 65. Under the new amendment to the Prop 65 laws, restaurants can protect themselves from lawsuits if they take corrective action within 14 days from receiving a notice of violation (i.e. post an appropriate warning sign), pay a $500 fine, and notify the complaining party that they fixed the problem. This was much better than in the past in where restaurants that received a Prop 65 notice were faced with the Hobson’s choice of either going to court or settling the case.
AB 227 was the first legislative effort to amend Prop 65 in 15 years and the second time since its inception 25 years ago. However, in enacting this reform, the legislature overlooked the need to protect producers and the corrective safe harbor provisions were not extended for the benefit of producers. As a result, plaintiffs’ attorneys commenced a new enforcement action against producers earlier this year.
Where do we go from here?
As noted above, the Wine Institute helped negotiate a settlement agreement that allows producers to “opt-in” to a consent judgment entered into by the parties and approved by the court. By doing so, producers would not need to ensure that every retailer, who provides that producer’s wines, posts and maintains their Prop 65 signs at their retail establishment.
While we certainly understand and appreciate the reluctance most producers will have to succumb to the demands of the plaintiff’s attorneys and a state bureaucracy that requires these signs, each producer ultimately has to decide whether he or she wants to run the risk that they might in the future be subjected to enforcement actions by enterprising plaintiff’s attorneys or whether they want protection from that risk by opting in to the pending settlement and thus avoid incurring unknown defense expenses and potential liabilities that can be as high as $2,500 per day. To opt in, contact Wine Institute VP & General Counsel Wendell Lee.
It should be noted, however, that producers that operate with less than 10 employees are exempt from the requirements of Prop 65. As a result, these smaller producers (who intend to stay small producers) should not have to worry about whether or not to opt-in to the consent judgment.