ASI's ESP Platform Meets New Prop 65 Product Warnings

TREVOSE, PA – August 13, 2018 – The Advertising Specialty Institute^® (ASI) today announced enhanced California Proposition 65 warning labels for all eligible products are automatically displayed in ESP^®, ESP presentations, one-click presentations, ESP Websites^™ and ESP Mobile^™, meeting new guidelines in advance of a looming August 30 deadline.

Under Prop 65, products sold or used in California must carry a warning label if they contain certain chemicals – a growing list that already includes over 1,000 chemicals. New amendments to 1986 regulations now mandate that in the warning, manufacturers must specify the chemicals that cause cancer or birth defects or other reproductive harm. Additionally, the warnings must now appear on internet and catalog product listings. Under Prop 65, businesses with 10 or more employees must provide “clear and reasonable” warnings before knowingly and intentionally exposing individuals to chemicals on the list.

Beginning two months ago, ASI began updating all ESP and ESP Website applications and processes to ensure new supplier-provided Prop 65 warnings are now seen in detail at every point a supplier, distributor and end-buyer could interact, ensuring the warning is communicated to all parties. Distributors see the warnings at least once, and often multiple times, ensuring they can share them with clients when appropriate.

ASI supplier product warnings display automatically, with a triangle warning symbol and label that appears below the product image, helping ASI suppliers gain full compliance with the new regulations. The warnings appear on ESP product detail pages and throughout the order process, an important feature because distributors have a legal obligation to present any Prop 65 warnings to end-buyers if that buyer is in California or buying products on behalf of someone who is in the state or shipping to the state.

The new chemical warning regulations for consumer products in California can present onerous challenges to promotional products companies, particularly as they create catalogs for next year, and can make companies vulnerable to lawsuits and daily fines.

“ASI is committed to helping everyone in our industry comply with these new and complex regulations by providing much-needed information and, above all, by making compliance easy for suppliers and distributors by offering product warnings automatically in ESP and on ESP Websites,” said Timothy M. Andrews, ASI president and chief executive officer. “ASI devoted considerable time and effort over the past several months to contact every ASI supplier to explain the new Prop 65 obligations and urge them to send their product information to ensure ASI can timely and properly display the warnings across the ESP business platform.”

In addition, ASI published several news stories on the updated regulations, including “Navigating the Complexities of Prop 65” in Counselor^® PromoGram, “Prop 65 and the Promotional Products Industry” in Advantages^® magazine and the blog post, “Your Web Page Is About To Violate The Law,” authored by a California attorney who also spoke at ASI’s CTO conference and during ASI Show Chicago education day in July. ASI’s data team worked closely with suppliers over the past several months to ensure that their Prop 65 information is reflected correctly on ESP.

“ASI made sure distributors had every opportunity to include the warnings in their presentations while presenting numerous opportunities to share the warnings with their customers as early or as late in the sales process as possible,” said Andrews. “It’s a legal obligation for suppliers and a commitment by ASI to make compliance as easy and automatic as possible.”

According to the state of California, “Manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning.”

California attorneys Erik K. Swanholt and Alyssa L. Titche said that under the new regulations, website warnings must either be:

• Placed on the product’s display page
• Given via hyperlink using the word “WARNING” placed on the product display page
• Or displayed, with a tie to the product for which the warning is being given, to the consumer before the purchase is completed (such as having the warning appear when the shopper enters a California ZIP code into the shipping information fields during the checkout process). A warning does not satisfy Prop 65’s requirements if the purchaser is required to search for it.

Similar to the new internet warnings, Swanholt and Titche said catalog warnings must be “closely associated” with the product being warned about. Given that there are no hyperlinks on paper catalog pages, these requirements will necessitate some creativity on the part of catalog producers to fit the requisite warning language into each page’s layout. It is not acceptable to provide a list of warnings in a glossary at the end of the catalog; rather, each product must have the warning on the product page.

“ASI did an incredible amount of work over the past several months, reaching out to all 3,200 suppliers to remind them of the need to comply,” said Charles B. Machion, ASI’s senior vice president and senior counsel. “We touched every supplier five times, sending reminders and information through regular mail and email to help them understand the law’s complexities and to make compliance as simple as possible.”

The new regulations contain a caveat that says products manufactured before the August 30 deadline do not need to conform to the updated warning requirements. Websites selling products and printed catalogs must prominently display the same warnings.

According to PromoGram, if manufacturers or distributors don’t apply warnings, they leave themselves open to Prop 65 “bounty hunters” – law firms that bring private citizen suits against violators to score an easy pay day. In 2016, there were nearly 1,110 settlements for a total of $40 million. Promotional products distributors and suppliers must deal with an added layer of complexity, because even if they sell products to an end-buyer in another state, those products could still potentially be given away or sold in California.

ASI suppliers may designate the appropriate Prop 65 warning on product information directly in the ESP Updates tool (https://espupdates.asicentral.com). For more information, email legaldept@asicentral.com or contact ASI customer service at (800) 546-1350, option 1, or customerservice@asicentral.com. For additional questions regarding Prop 65, visit www.P65Warnings.ca.gov.

About ASIThe Advertising Specialty Institute (ASI) serves a network of 23,500 suppliers, distributors and decorators in the $23.6 billion promotional products industry. ASI’s flagship product, the technology platform ESP^®, manages the industry’s entire supply and marketing chain. ASI also produces award-winning digital and print content, live events and educational programs that enable companies in 55 countries to be more efficient, productive and profitable. ASI’s Counselor^® magazine provides the most authoritative business content in the industry, and the ASI Certification Program features 500+ live and online education courses for over 40,000 professionals. The company, family owned and operated since 1962, is proud to have been consistently ranked among the “Best Places to Work” in Philadelphia and Bucks County, PA. For more info: www.asicentral.com.