california consumer-protection
Is a partially-visible California Proposition 65 Label &quot;Clear and Reasonable&quot;?
<p>Given that it is possible to identify a California Proposition 65 label on a picture of a product used in a web store even if it is only partially visible and at angle, can that be construed as reasonable in this context?</p>

<p>An example of this can be seen on this web store page where only one image includes the California Proposition 65 label and then only partially visible and at angle:</p>

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  <p><a href="https://rads.stackoverflow.com/amzn/click/B001PLJCXO" rel="nofollow noreferrer">Health Plus Colon Cleanse, Regular Jar, 48 Ounce</a></p>
  
  <p><a href="https://i.stack.imgur.com/kRmWM.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/kRmWM.png" alt="California Proposition 65 label only partially visible and at angle on a web store where Health Plus Colon Cleanse, Regular Jar, 48 Ounce is sold"></a></p>
</blockquote>

<p>I found this document from 1988 explaining the regulations but it is not entirely clear about this case.</p>

<p><a href="https://web.archive.org/web/20161222081435/https://oehha.ca.gov/media/downloads/crnr/12601fsornov1988.pdf" rel="nofollow noreferrer">REVISED FINAL STATEMENT OF REASONS 22 CALIFORNIA CODE OF REGULATIONS DIVISION 2 section 12601. Clear and Reasonable Warning</a></p>

<blockquote>
  <p>There are two elements to any warning: the manner in which the warning is presented, and the message by which the warning is communicated. The term "reasonable" appears to have been intended to apply to the first element. The manner of transmission must be reasonable. The term "clear", on the other hand, appears to have been intended to refer to the message which the warning must convey. Therefore, in order for a warning to be clear and reasonable, the manner of transmission must be reasonable, and the message employed must be sufficiently clear to communicate the warning.</p>
</blockquote>

<p>Does a clue to the existence of the label in the image reasonably present evidence that there is such a label on the product?</p>

<p>Assuming that what you present in the question is the complete listing on the web page, no it does not, as the law currently stands:</p>
<p><a href="https://govt.westlaw.com/calregs/Document/I239135C5397C4423B906B672C80BDD98?viewType=FullText&amp;originationContext=documenttoc&amp;transitionType=CategoryPageItem&amp;contextData=(sc.Default)" rel="nofollow noreferrer">27 CA ADC § 25602</a>:</p>
<blockquote>
<p>(a) Unless otherwise specified in Section 25607.1 et seq, a warning meets the requirements of this subarticle if it complies with the content requirements in Section 25603 and is provided using one or more of the following methods:</p>
<p>(1) A product-specific warning provided on a posted sign, shelf tag, or shelf sign, for the consumer product at each point of display of the product.</p>
<p>(2) A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning.</p>
<p>(3) A warning on the label that complies with the content requirements in Section 25603(a).</p>
<p>(4) A short-form warning on the label that complies with the content requirements in Section 25603(b). The entire warning must be in a type size no smaller than the largest type size used for other consumer information on the product. In no case shall the warning appear in a type size smaller than 6-point type.</p>
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<p>Since this is classified as a dietary supplement, the more-detailed requirements of <a href="https://govt.westlaw.com/calregs/Document/IBD9257147FBA4FB28A91AB2FDAAEE3B5?viewType=FullText&amp;originationContext=documenttoc&amp;transitionType=CategoryPageItem&amp;contextData=(sc.Default)" rel="nofollow noreferrer">27 CA ADC § 25607.1</a> apply:</p>
<blockquote>
<p>(a) Except as provided in subsection (b), a warning for food exposures, including dietary supplements, meets the requirements of this subarticle if it complies with the content requirements in Section 25607.2 and is provided using one or more of the methods required in Section 25602.</p>
<p>(b) Where the warning is provided on the food product label, it must be set off from other surrounding information, enclosed in a box and comply with the content requirements specified in Section 25607.2.</p>
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<p>The warning on the bottle appears to comply with the required form of a <a href="https://govt.westlaw.com/calregs/Document/I87CE2EEC8D05486D8316012CD63FBAC7?viewType=FullText&amp;originationContext=documenttoc&amp;transitionType=CategoryPageItem&amp;contextData=(sc.Default)" rel="nofollow noreferrer">25607.2</a> warning, inside the box required by 25607.1(b).  If this bottle were being sold in a store or other in-person method of purchase, this would be sufficient.  However, 25602(b) provides additional requirements for internet sales:</p>
<blockquote>
<p>(b) For internet purchases, a warning that complies with the content requirements of Section 25603(a) must also be provided by including either the warning or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase.</p>
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<p>Since the warning is not fully legible, it does not meet the requirements.</p>
<p>However, <a href="https://oehha.ca.gov/proposition-65/crnr/notice-adoption-article-6-clear-and-reasonable-warnings" rel="nofollow noreferrer">the law was changed in 2016</a>, effective August 30, 2018.  Prior to that, the internet-specific terms were not present, and simply having the warning on the bottle was sufficient.</p>

<p>The answer appears to be that it is not.</p>

<blockquote>
  <p><a href="https://govt.westlaw.com/calregs/Document/IBF463A2DBEEC4D9B876000D05E8793E3?viewType=FullText&amp;originationContext=documenttoc&amp;transitionType=CategoryPageItem&amp;contextData=(sc.Default)" rel="nofollow noreferrer">§ 25603.1. Consumer Products Exposure Warnings - Methods of Transmission. [Operative until August 30, 2018]</a></p>
  
  <p>(c) The warnings provided pursuant to subparagraphs (a) and (b) shall be prominently placed upon a product's label or other labeling or displayed at the retail outlet with such conspicuousness, as compared with other words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.</p>
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