On 30 August 2018, new California regulations (‘Proposition 65’) came into effect requiring warning statements on alcoholic beverages for any winery that sells and ships their products direct-to-consumers (DtC) in the State of California.
The new regulations will impact Australian wineries shipping directly to consumers in California. Direct-to-consumer shipments must include warning notices:
- in or on the carton (but not necessarily on the label), and
- on the website through which the purchase is made.
Note that these are not on-label warnings but separate notices.
For online sales and DtC shipments, warnings must be in a type size no smaller than the largest type size used for other consumer information on the product, in no case smaller than 8-point type. The rule requires that the warning ‘be readable and conspicuous’ to the consumer prior to consumption. The required wording is as follows:
|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. |
Online sales warnings
Proposition 65 warnings for online sales must provide the full warning statement in a text box as described above and the warning must be ‘clearly associated’ with the item being purchased. The warning ‘must be displayed with such conspicuousness as compared to other words’ as to assure the warning is ‘likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use’. The warning must always be provided to the consumer prior to finalising the purchase.
There are three acceptable methods for providing the online warning including:
- placing the full text in a text box directly on the product display page
- including the word ‘WARNING’ on the product display page with a hyperlink that provides one-click access to the full text, or
- including the warning as part of the check-out process prior to the final purchase. It is acceptable to provide the warning, for example, as a pop-up whenever a purchaser enters a California zip (post) code.
Penalties for non-compliance are potentially high. Australian exporters should talk with their California-based distributors about responsibility for ensuring compliance at the retail level.
The California Wine Institute has issued some useful guidance here.
In addition, any alcoholic beverage that sell products with cans, lids and/or bottle cap liners containing BPA must also post the new ‘Point of Sale BPA warning’ on their website and in direct-to-consumer shipments sent to a California address. Our understanding is that BPA use is rare in screwcaps. If uncertain about your packaging, you should check with your supplier.
The wording for the statement on direct-to-consumer shipments is as follows:
|⚠ 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. |
The wording for the statement on websites is as follows:
|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. |
Additional information is provided in the USA Export Market Guide.