California Adopts Amendments to Prop 65 “Safe Harbor” Warning Requirements
In September, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) announced that it had adopted amendments to the regulations governing California’s Proposition 65, which requires that businesses provide a “clear and reasonable warning” before exposing an individual to any chemicals that California has determined cause cancer or reproductive harm. Although a business can create its own warning and hope that a court will conclude it is “clear and reasonable,” OEHHA has promulgated a series of regulations establishing a so-called “safe harbor” — warnings that are considered per se clear and reasonable. So, although OEHHA dubs the safe harbor warnings as “non-mandatory guidance,” for any company not willing to bear the risk of creating its own warning, the “safe harbor” regulations are de facto requirements.
Effective August 2018, the amendments go into effect and the safe harbor regulations will be dramatically overhauled. Warnings under the new regulations must generally be more specific than under existing regulations, mentioning by name at least one listed chemical necessitating the warning. OEHHA will also require the warning to include a yellow triangle with an exclamation point and the word “WARNING” in bold, capital letters. The warning must be accompanied by a link to OEHHA’s website. So, for example, a company that is currently using a warning for a product containing asbestos that simply reads “WARNING: This product contains a chemical known to the State of California to cause cancer” would be required to use a warning that looked something like the one below, if it wished to remain in the “safe harbor.”
In addition to these and other generally applicable changes, the new regulations address dozens of individual circumstances, including specific regulations governing online and catalog sales, environmental exposure (including particularized regulations governing parking facilities and environmental exposure to petroleum products), occupational exposure, food (including supplements) and alcoholic beverages, prescription drugs, furniture, raw wood, and food and beverage packaging containing bisphenol A (BPA), among others.
Among the regulatory changes is one that will likely be welcome to businesses that choose to put their warnings directly on the products they sell. Under the new regulations, a warning placed on a product itself can be as simple as “Cancer” or “Reproductive Harm,” so long as it is accompanied by the triangle symbol, the word “WARNING,” and a link to OEHHA’s website. So the “on-product” version of the warning above would simply be:
While the regulations themselves are silent as to what constitutes an “on-product warning,” OEHHA explained in its Final Statement of Reasons that “on-product refers to the product itself, as well as the immediate container, box, or wrapper of the product[.]”
The amendments go into effect on August 30, 2018. In the interim, a company may use the safe harbor warning provided under either the current regulations or the new amendments, giving businesses two years to transition to the new regulatory standard. A comprehensive list of the regulatory changes — along with a side-by-side comparison to the existing regulations — can be found on OEHHA’s website.