California DTC shipments must include Prop 65 warnings effective August 30

If you’re like one of the vast majority of wineries in the United States, you most likely have a wine club or allocation program in place to ship your wine to consumers all over the country; including the largest wine consuming state, California. Are you aware that new regulations go into effect in two weeks that will require you to place warning statements on or in the box of wine that you’re sending to all of your club members in California? And if you don’t comply you leave yourself open to the possibility of penalties and litigation? Remember, this rule applies to any wine shipped to California consumers, whether it’s coming from inside or outside the state.

We’ve put together some FAQs to help you understand what you’ll have to put in place to make sure that you comply with the new regulations.

Originally approved by California voters in 1986, Proposition 65 became known as the Safe Drinking Water and Toxic Enforcement Act of 1986. This act required the state of California to publish a list of chemicals known to cause cancer or birth defects; which would allow consumers to make informed decisions about the chemicals contained in the products and packaging of the items they purchase. Since that time, this list has grown to over 800 chemicals, one of which is BPA (Bisphenol A).

The Proposition 65 program is administered by the Office of Environment Health Hazard Assessment (OEHHA). Recently, there have been changes to the way Prop 65 warnings are communicated to consumers, which may affect alcoholic beverage manufacturers and importers.

BPA (Bisphenol A) is a chemical commonly used to harden plastics. In the alcoholic beverage industry it can be found in tin cans, lids and bottle cap liners.

Check with the suppliers of your packaging. If the packaging does not contain BPA, ask the supplier for a letter certifying the packaging does not contain BPA. If you can’t confirm that the packaging doesn’t contain BPA, then posting the signs and warnings in your tasting room and website is recommended.

If you have determined that your packaging may contain BPA, then yes, you must include the warning in the box to your California customers. It is not necessary to include the warnings in shipments made to consumers outside the state of California.

If packaging you use contains BPA, you must include the warning statement below. The type size must be at least 8 point type or larger.

WARNING: This product can expose you to chemicals including Bisphenol A (BPA), which are known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.
For a list of products go to: www.prop65bpa.org.

You must also include the following statement:

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.

The warning statements have to be placed on the outside or inside the box where the consumer can easily see and read the statements before they consume your product.

You must post the following alcohol warning sign:

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.

The warning must be displayed in one of the following formats:

• An 8 ½” X 11” sign in no smaller than 22-point type, it is conspicuous and easy for customer to see as they enter the area where alcohol is served.
• A 5” x 5” sign placed at each point of sale that it is conspicuous and easy to read.

If you use packaging that contains BPA for your products, you must also post a sign in the same format with the following statement:

WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you consume foods or beverages packaged in these containers. For more information go to www.P65Warnings.ca.gov. For a list of products go to: www.prop65bpa.org.

If packaging you use contains BPA, you must post this warning statement.

WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you consume foods or beverages packaged in these containers. For more information go to www.P65Warnings.ca.gov. For a list of products go to: www.prop65bpa.org.

If you have a confirmation letter from your suppliers that your product does NOT contain BPA, you must still include the following warning statement.

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.

Note that you have to use the EXACT wording found in these statements on your website.

The warning must be somewhere on your site that is clearly visible and “prominently displayed” to a California consumer before they actually finalize the purchase of your product.

You must comply with the California regulations listed above for shipments made to California consumers and any purchases that California consumers make on your website.

No later than August 30th, 2018.

Businesses with less than 9 employees are exempt for the Prop 65 requirements.

Barbara Snider of Hinman & Carmichael, LLP put together a great blog post that explains the warnings and ramifications of not complying here.

You can find more information on the Wine Institute Compliance Rules website, and at the FAQ’s on the OEHHA website. Wine Institute also put together this handy chart to lay out the requirements.

If you have any questions around the legal issues behind the Prop 65 regulations, we recommend you contact legal counsel. For any questions regarding the general requirements of Prop 65, contact us at 805-239-4502.