New Prop 65 Warning Requirements for Online Sales and DTC Shipments in California

Brendan Magauran | August 13, 2018

On August 30, 2018, newly-amended Prop 65 clear and reasonable warning regulations that apply to any winery that sells and ships their products to consumers in the State of California come into effect.  The new regulations (27 CCR § 25607.3 and 27 CCR § 25607.4)  require a Prop 65 Alcohol Beverage Warning language to be displayed on winery websites, on or in packages containing direct-to-consumer orders sent to a California address and in California winery tasting rooms.

Wineries that did not opt in to the 2014 Proposition 65 Consent Judgement negotiated by Wine Institute must use the new clear and reasonable Prop 65 Alcohol Warning language that includes a hyperlink to the OEHHA website.  Wineries, however, that opted in to the Consent Judgement may continue to use the current alcohol warning after the new regulations become effective on August 30, 2018.

Wineries that produce and sell products with can, lid and/or bottle cap liners containing BPA must also post the new Point of Sale BPA warning on their website and in California winery tasting rooms, and include the new Point of Display BPA Warning in or on direct-to-consumer shipments sent to a California address. As each winery has different practices, please consult your legal counsel or compliance department to determine if any of your products contain BPA. Written certification letters from your packaging suppliers and laboratory testing and analysis are methods that may help determine if any of your winery’s products contain BPA.

The chart and summary below provide a quick reference to the clear and reasonable warning regulations for Alcohol Beverages and BPA.

 

Direct-to-Consumer Shipments

For alcohol beverages shipped to consumers in California, the Alcohol Warning is required to appear on or in the shipping container or delivery package in a type size that is no smaller than the largest type size used for other consumer information on the product. In no instance may the alcohol warning appear in a type size that is smaller than 8-point. The warning message must be readable and conspicuous to the recipient prior to consumption of the alcoholic beverages.

Website and Catalogs

The Alcohol Warning must be prominently displayed on the website so that the consumer sees the warning on their website prior to completing the purchase.  OEHHA does not consider a warning to be “prominently displayed” if the consumer has to search for the warning on the business’s website. Note that wineries are not required to display a warning to consumers outside of California.

For more details see the updated PROPOSITION 65 CLEAR AND REASONABLE WARNINGS QUESTIONS AND ANSWERS FOR BUSINESSES: INTERNET AND CATALOG WARNINGS on the Office of Environmental Health Hazard Assessment California Environmental Protection Agency (OEHHA) website which you may access here.

 

California Winery Tasting Rooms

The Alcohol Warning should be provided using one or more of the following methods:

Wineries not covered by the 2014 Consent Judgement must use the new Alcohol Warning language. If the products offered for sale contain BPA, the new Point of Sale BPA Warning must also be displayed.

Businesses with fewer than 10 employees are exempt from ALL Prop 65 requirements. Therefore, qualified businesses are not required to provide BPA and Alcohol warning signs.