Effective August 30, 2018, new Prop 65 signage requirements will be in effect in California for alcohol retailers and suppliers with ten or more employees. In a nutshell, there are two new requirements:

(1) The existing Prop 65 general alcohol warning language has been slightly revised to include the word WARNING and a link to the state government’s Prop 65 website;

(2) A new warning is required to warn consumers about Bisphenol A (BPA), which is a chemical present in certain packaging materials, such as some synthetic wine corks and aluminum cans, and in certain processing equipment, such as some hoses. (We previously wrote about BPA here.)

Suppliers and retailers of alcoholic beverages must comply to the letter with the new requirements to remain safe from possible lawsuits for violating the Prop 65 consumer warning requirements. Below is a summary of the specific signage requirements and instructions about where these required warnings will need to be posted.

(1) The Prop 65 General Alcohol Warning Sign

(a) Who must provide the general alcohol warning?

All retailers of alcoholic beverages in California with 10 or more employees must post the new general alcohol warning sign pictured below. The posting requirements also extend to California producers with tasting rooms, ecommerce websites, catalog sales, and to retailers outside of California shipping wine to California consumers.

(b) What does the general alcohol warning say?

The warning must use the exact language shown below, including the word WARNING in uppercase, bold type. When it is posted at the retail point-of-sale, it must be presented within a rectangular border, as shown below.

(c) Where must the general alcohol warning sign be posted?

• Must be visible to consumers before they purchase alcohol. Retail stores and tasting rooms have two options:

1) on an 8.5” x 11” sign with 22-point type at the point-of-display, that is at eye level, and is “readable and conspicuous” i.e., on the wall of the tasting room or retail store near where the alcohol is displayed; or

2) on a 5” x 5” sign with 20-point type presented within a square border, just as pictured above, placed at each point-of-sale (i.e., near each cash register) or each point-of-display.

• Bars and restaurants may use one of the options above, or may provide the warning on a menu or drink list.

• Websites and product catalogs displaying alcohol for purchase also must display the general alcohol warning. In cases where the size of the sign and text is not specified, such as on menus, websites and catalogs, the warning must be prominently displayed with such conspicuousness as compared to other words and designs on the labels or related signage as to make the warning likely to be seen, read and understood by an ordinary individual.
• Deliveries of alcohol direct-to-consumer must include the general alcohol warning “on or in the shipping container or delivery package in a type size no smaller than the largest type used for other consumer information on the product,” and in no case smaller than 8-point type. The warning must be readable and conspicuous, so place it where it will be seen before consumption.

(2) The BPA Warning Sign

(a) Who must provide the BPA warning sign?

The BPA warning only applies to companies with 10 or more employees that sell products that contain BPA, and may not apply to your business. If you aren’t sure if your product contains BPA, you can seek written certification letters from your suppliers of equipment and packaging materials (e.g., cans, bottles, caps, hoses, synthetic corks, etc.). If you are unsure, it would be wise to err on the side of caution and include the warning.

(b) What does the BPA warning sign say?

The BPA warning must use the exact language shown below: including the symbol (a black exclamation point within a yellow triangle) at least as large as the word “WARNING,” which must appear in uppercase, bold type. (The triangle symbol can be black and white if the sign is black and white.)

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 http://www.P65Warnings.ca.gov. For a list of products go to: http://www.prop65bpa.org.

(c) Where must the BPA warning sign be posted?

• Must be visible to consumers before they purchase alcohol. Retail stores and tasting rooms have two options:

1) on a posted sign, shelf tag or shelf sign at the point-of-display; or

2) with an automatic warning provided to the consumer prior to or during the purchase, that does not require the consumer to seek out the warning.

• Websites displaying alcohol can either use one of the methods above, or can print only the word WARNING on the product display page with a hyperlink directly to the text of the warning above. In any case, the warning must be prominently displayed and cannot be buried in the general website content. (A website wanting to use the automatic warning option above, could enable a pop-up warning that appears when the consumer enters a California zip code, for example.)

• Catalogs featuring alcohol for sale must display the warning “in a manner that clearly associates it with the item being purchased.”
• Shipments of alcohol delivered direct-to-consumer must include the BPA warning prominently on or in the packaging if the products may expose the consumer to BPA.

If the alcohol products being displayed or sold contain advertising or consumer information in a foreign language, the general alcohol warning and the BPA warning must also appear in that language, as well as English.

More information on the BPA requirements, including sign templates, can be found at the Wine Institute’s website here. Note that you can order free signs that are compliant, provided by Prop 65 Sign Management, as we noted in our earlier article.

This summary is provided for general information purposes only and should not be construed as legal advice. Any businesses selling alcoholic beverages in California should be aware of the impact of Prop 65 on their activity. If you have any questions, contact one of the attorneys at Strike Kerr & Johns.

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