For many years, the Office of Environmental Health Hazard Assessment ("OEHHA"), the lead agency for Proposition 65, has had enabling regulations intended to provide "safe harbor" warnings, that would be automatically deemed "clear and reasonable" and therefore complaint with Proposition 65. The warnings most commonly seen on products in California have been these:
WARNING: This product contains a chemical known to cause [cancer, or birth defects and other reproductive harm, or both].
The existing safe harbor warning, and supporting case authority, made it clear that if a company complied with these regulations, it wouldn't have to litigate the question of whether its warning was clear and reasonable.
For almost two years, OEHHA has been drafting proposed revised "safe harbor" warnings. And on September 2, the agency announced its final revised regulations. These regulations will have an enormous input on almost every company that sells a product in California, manufactures or distributes a product sold in California, owns or manages a public space or employs persons in California. Many companies who adopted warning programs in settlement of Proposition 65 enforcement actions, or who implemented company-wide product warning protocols to ensure Proposition 65 compliance, will have to substantially revise their compliance programs before the effective date of August 30, 2018. Companies can comply until then by following with the earlier regulations or the new ones, and need not replace compliant warnings for products manufactured before the effective date.
More after the jump.
The new regulations are much more comprehensive than the current ones, and cover a wide variety of companies and exposures. But as CalBizLit sees it, here are the changes going into effect August 30, 2018 that every company doing business in California needs to be aware of immediately.
- The old “safe harbor” language won’t be safe anymore:
- The new “safe harbor” warning regulations require specific identification of at least one chemical, and sometimes more.
- Companies who have agreed to give warnings as part of a settlement agreement may have to revise their warnings (but companies bound by a consent judgment signed by a judge will not).
- Warnings in owners’ manuals no longer qualify as safe harbor warnings.
- On-line warnings will now be required for internet purchases.
- There is now a way for importers, distributors and manufacturers to sometimes pass the warning obligations down to retailers.
- As a practical matter, for consumer goods and environmental exposures, the new regulations establish what may be the only permissible way to warn.
- In some instances, warnings must be provided in languages other than English.
In future posts, we’ll be providing lots more details. So stand by!