2.1. Beginning as of the Effective Date, the Company shall not Distribute into the State of
California Covered Product(s) that expose(s) a person to the Violative Daily Exposure
Level, unless Covered Products(s) meet(s) the Warning requirements of this Agreement.
Covered Product(s) that Company Distributes into the State of California after the
Compliance Date, shall either (1) qualify as a Reformulated Product or (2) comply with
the Warning requirements of this Agreement.
2.2. Testing.
2.2.1. The testing requirements of Section 2.2 do not apply to Covered Products
for which the Company has provided the Warning.
2.2.2. Testing shall be performed prior to Company’s first distribution into
California or sale in California of Reformulated Product;
2.2.3. Testing shall retest the product if it either (a) removes the Warning from
the Covered Product or Reformulated Product or (b) makes a material
change in the Covered Product or changes suppliers of the Covered
Product. Company can discontinue testing of a Reformulated Product if it
complies with the Warning requirements of this Agreement or if the
Reformulated Product is not distributed or sold in California.
2.2.4. For purposes of determining if the Warning is required, the Company shall
randomly select and test three (3) samples of the Covered Products from
different lot numbers by Company (or, if fewer than 3 lots are available
for testing, from as many lots as are available) to determine if a Covered
Product exceeds the “Violative Daily Exposure Level” for lead, or
cadmium, or for both. The company must consider the highest level in
determining if the product can be sold without a warning. HLF reserves
the right to test Covered Products using the same procedure outline in this
Section 2.2 and, if the results are violative of Section 2.2., assert any new
claims that may arise. Testing shall continue at least once per year
thereafter for as long as the Company sells Covered Product(s), subject to
the provision in Paragraph 2.2.3.
2.2.5. Testing pursuant to this Agreement shall be performed using a laboratory
method that complies with the performance and quality control factors
appropriate for the method used, including limit of detection, limit of
quantification, accuracy, and precision and meets the following criteria:
Gas Chromatography Mass Spectroscopy, achieving a limit of detection of
less than or equal to 10 parts per billion, or any other testing method
subsequently agreed upon in writing by the Parties.
2.2.6. Testing pursuant to this Agreement shall be performed by an independent
third-party laboratory accredited to perform testing for cadmium, lead, and
lead compounds using the methodology in Section 2.2.5. Such laboratory
shall have authority to modify any testing protocol in this Section 2.2 as it
believes is reasonably necessary for its analysis.
2.3. Warning.
2.3.1. A clear and reasonable exposure Warning must be provided for Covered
Product(s) with Violative Daily Exposure Level that Company Distributes
into the State of California after the Compliance Date. The Warning shall
consist of either the Standard Warning (under 2.3.1. (a)) or the Short-Form
Warning (under 2.3.1. (b)) or any other Proposition 65 warning using the
applicable regulatory content for cadmium and lead in foods, as provided
under 27 Cal. Code Regs. § 25600.1 and related statutes:
2.3.1 (a) Standard Warning. The Standard Warning shall be consistent
with one of the following statements:
Warning Statement – The warning statement must comply with either
Option 1, 2, or 3 below.
A) Option 1, Long-Form Warning:
WARNING: Consuming this product can expose you to chemicals
including lead, which is known to the State of California to cause
cancer and birth defects or other reproductive harm, and to
cadmium, which is known to the State of California to cause birth
defects or other reproductive harm. For more information, go to
www.P65Warnings.ca.gov/food.
B) Option 2, Short-Form Warning that can be used until January 1,
2028:
The font size of this short-form warning must be a minimum
of 6 points, and it cannot be smaller than the largest size font
used for other consumer information (as defined in 27 Cal.
Code Regs. § 25600.1(c) included on the label:
WARNING: Cancer and Reproductive Harm –
www.P65Warnings.ca.gov/food
The Option 2 Short-Form Warning can be used before
January 1, 2028.
C) Option 3, Short -Form Warning compliant after January 1, 2025:
WARNING: Risk of cancer and reproductive harm from
exposure to lead and cadmium. See
www.P65Warnings.ca.gov/food.;
The Option 3 Short-Form Warning can be used before
and/or after January 1, 2025.
2.3.1 (b) The font size of the Short-Form warning must be a minimum of 6
points, and it cannot be smaller than the largest size font used for
Consumer Information. Print Warning. Standard Warning or Short-Form
Warning provided pursuant to Section 2.3 in print form must:
(a) contain the word “WARNING:” in all capital letters, in bold font,
followed by a colon;
(b) for the Short-Form warning, display the Warning Symbol to the
left of the word “WARNING:”;
(c) display the Warning Symbol, if used, in a size no smaller than the
height of the word “WARNING:”;
(d) be affixed to or printed on the shipping box or any other immediate
packaging of a product, or on a placard, shelf tag, sign or displayed on
an electronic device;
(e) be displayed with such conspicuousness, as compared with other
words, statements, or designs as to render it likely to be read and
understood by an ordinary individual under customary conditions of
purchase or use;
(f) be set off from other surrounding information;
(g) be enclosed in a box with a black, bold border.
2.3.2. Online/Internet Warning. If Company or a Distributor sell(s) Covered
Product via internet website(s) to customers located in California, the
warning requirements of this section shall be satisfied by (1) having a
warning printed on or affixed to the shipping box or any other immediate
packaging of a product that is visible to the consumer prior to opening the
shipping box or any other immediate packing of a product, and (2) the
Warning also must be displayed online prior to the purchase, either on one
or on all of the below:
(a) on the same web page on which a Covered Product is displayed and/or
described;
(b) on the same page as the price for the Covered Product is displayed;
(c) on one or more web pages displayed to a purchaser prior to completion
of purchase during the checkout process; or
(d) by a clearly marked hyperlink using the word “WARNING” on the
product display webpage and/or checkout page provided to the California
purchaser prior to completion of checkout.
2.3.3. Online Warning must comply with all requirements of Section 2.3.2 of
this Agreement.
The placement of the warning must comply with 27 Cal. Code Regs. § 25602(b).
2.3.4. Online Short-Form Warning, in addition to other requirements, must
display a Warning Symbol with the clickable word “WARNING” in bold,
black font, in the font size no less than the largest font in the Consumer
Information; must link to the text of the Standard Warning; and must link
to the website http://www.P65Warnings.ca.gov/food.
In lieu of providing the warnings required by this Section 2.3, for any Covered Product sold by
Company to a Distributor, Company shall provide the written Notice to Distributors and
Retailers attached hereto as Exhibit A. Confirmation of receipt of the Notice to Distributors and
Retailers must be received electronically or in writing from a Distributor.
