Angling International informed in its September issue that California’s Proposition 65 has serious ramifications for any business involved in the manufacture, supply and sale of fishing tackle. And it’s here now.
California law requires businesses to provide a ‘clear and reasonable’ warning to consumers before exposing them to chemicals known to the State to carry certain health hazards and some requirements have existed for years. However, significant changes have now been introduced in the form of the Amended Safe Harbor Warning regulations. The new regulations took effect on August 30 and apply to products manufactured on or after that date.
The measures seek to protect consumers from chemicals known to the State to cause cancer or reproductive harm, unless the exposure is below certain thresholds. To put that in perspective, any manufacturer, supplier or retailer selling products in California must conform to a complex set of new regulations. Failure to do so will be heavily penalised. Compliance is compulsory for any manufacturer or supplier exporting products into one of America’s prime fishing states, regardless of where they may be in the world, although the importer would most likely be held liable.
Warnings must either be on the product or its packaging, or on an in-store sign, label or tag that associates the warning with the specific product. Every member of the supply chain, from manufacturer to distributor to retailer, can be held responsible if a correct warning is not given. Enforcement is strict. Attorneys for so-called bounty hunters have the right to enter stores, inspect products and labelling and thereafter issue notices of violation to manufacturers and retailers. Businesses have already been sued under the prior labelling regulations and cases are under settlement. However costly, settlements are cheaper than taking cases to court since there is generally no recovery fee in American courts. The amended Safe Harbor Warning requirements are more prescriptive, raising the bar for compliance and likely leading to more disputes and lawsuits. The American Sportfishing Association (ASA), ICAST’s organiser, saw fit to run two seminars on the subject during the show, such is its concern for its members on this issue. The seminars were delivered by Marc M. Gorelnik, General Counsel for the ASA, and co-hosted by the association’s VP Government Affairs, Scott Gudes.
“Proposition 65 came from a voter initiative and is a consumer protection measure,” explains Gorelnik. “It is currently a state issue, but affects the entire industry across the country and probably beyond that. “Proposition 65 covers an ever-expanding list of chemicals already approaching 1,000. The ASA’s goal is to keep people out of trouble. It is important that businesses make themselves as small a target as possible. “No-one in the supply chain is exempt. Even Disney’s Magic Kingdom has had to comply, with warnings to customers at its amusement parks.” The details of the law and how to conform correctly are too myriad to go into here, but warning language has to be product-specific and must appear on individual products. Blanket warnings of a general nature, which have worked until now, are no longer permissible.
Wording must be clearly visible to consumers at point of sale and if instructions on a product are in more than one language then the warning must be in each of those languages. The requirements, which also extend to e-commerce and catalogue sales, have the potential to cause conflict between supplier and retailer, warns Gorelnik. “The primary responsibility is on suppliers, not retailers, though both may be culpable,” he says. “But if the supplier warns the retailer in the proper way he is shifting liability downstream. If the retailer is adjudged to be non-compliant he may never buy from that supplier again. There is a risk management decision to be made by each business.”
The ASA’s best practice advice on Proposition 65 suggests that suppliers co-ordinate warning methods with retailers to avoid subsequent disputes.
The ASA doesn’t offer legal advice on Proposition 65, but has retained lawyers to provide the best available interpretation and is a resource for its members on the matter.
Further information on Proposition 65 and the amended regulations, including safe harbor warning methods and language issues for fishing tackle and related products and Proposition 65 enforcement issues can be found at https://oehha.ca.gov/proposition-65/proposition-65-list (please copy and paste the url)