60 Day Notice 2021-03005

3. INJUNCTIVE RELIEF, REFORMULATION, TESTING AND WARNINGS 3.1 Beginning on the Effective Date, EVIG shall be permanently enjoined from manufacturing for sale in the State of California, “Distributing into the State of California,” or directly selling in the State of California (collectively referred to as “California Sales Practices”), any Covered Product that exposes a person to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day unless it meets the warning requirements under Section 3.2. 3.1.1 As used in this Consent Judgment, the term “Distributing into the State of California” shall mean to directly ship a Covered Product into California for sale in California or to sell a Covered Product to a distributor that EVIG knows or has reason to know will sell the Covered Product in California. 3.1.2 For purposes of this Consent Judgment, the “Daily Lead Exposure Level” shall be measured in micrograms, and shall be calculated using the following formula: micrograms of lead per gram of product, multiplied by grams of product per serving of the product (using the largest serving size appearing on the product label), multiplied by servings of the product per day (using the largest number of recommended daily servings appearing on the label), which equals micrograms of lead exposure per day. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one. 3.2 Clear and Reasonable Warnings If EVIG is required to provide a warning (“Warning”) when engaging in California Sales Practices with respect to the Covered Product pursuant to Section 3.1, EVIG and the Warning must comply with Proposition 65. The Warning shall be in the following form: 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. For more information go to https://www.p65warnings.ca.gov/food. EVIG shall use the phrase “cancer and” in the Warning if EVIG has reason to believe that the “Daily Lead Exposure Level” is greater than 15 micrograms of lead. The Warning shall be securely affixed to or printed upon the label of each Covered Product, and it must be set off from other surrounding information and enclosed in a box. In addition, on or before February 1, 2025 or another date as agreed to in writing by the parties, for any Covered Product sold over the internet when a California delivery address is provided for the purchase, the Warning shall appear on the checkout page or at any other point prior to completing the purchase of a Covered Product so long as the Warning is prominently displayed such that the purchaser does not have to search for it in the general content of the website. An asterisk or other identifying method must be utilized to identify which products on the checkout page are subject to the Warning. The Warning for any Covered Product may not be made through a hyperlink. The Warning shall contain a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline placed to the left of the text of the word “WARNING,” in a size no smaller than the height of the word “WARNING.” No statements intended to or likely to have the effect of diminishing the impact of the Warning on the average lay person shall accompany the Warning. The Warning shall be at least the same size as the largest of any other health or safety warnings also appearing on the website or on the label and the word “WARNING” shall be in all capital letters and in bold print. EVIG must display the Warning with such conspicuousness, as compared with other words, statements or designs on the label, or on its website, if applicable, to render the Warning likely to be seen, read and understood by an ordinary individual under customary conditions of purchase or use of the product. The Warning may contain information that is supplemental to the content required by this Section 3.2 only to the extent that it identifies the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals. Where a sign or label used to provide the Warning for a Covered Product includes consumer information about the Covered Product in a language other than English, the Warning must also be provided in that language in addition to English. For purposes of this Consent Judgment, the term “label” means a display of written, printed or graphic material that is printed on or affixed to a Covered Product or its immediate container (or lid) or wrapper. 3.3 Notwithstanding any other provision of this Consent Judgment, EVIG shall be deemed to be in compliance with this Consent Judgment if, after the Effective Date, it provides a warning in compliance with new or modified final safe harbor warning regulations adopted by the State of California’s Office of Environmental Health Hazard Assessment (“OEHHA”) applicable to the Covered Products and exposure to lead. In the event that Proposition 65, either as a whole or as specifically applicable to the Covered Products or listed chemicals at issue in the case, is repealed or federally preempted, or if new or different safe harbor levels are established as applicable to the Covered Products, or if Proposition 65 is otherwise rendered inapplicable to the Covered Products or the listed chemicals at issue in this case, all by any final California regulation or statute, or by a decision of the California Supreme Court or the United States Supreme Court or by the California legislature or the United States Congress, or if any provision of this Consent Judgment is specifically rendered inapplicable or no longer required as to the Covered Products as a result of any such regulatory or statutory change, repeal or preemption or decision of the California Supreme Court or the United States Supreme Court, or due to binding federal laws or regulations, then EVIG may provide written notice to ERC of any asserted change in the law and seek modification of the Consent Judgment pursuant to Section 5. EVIG contends that the Covered Product sold directly into California by EVIG currently has a warning label affixed in compliance with Proposition 65.