And finally, we are back to the Office of Environmental Health Hazard Assesment's revisions to the safe harbor warning regulations. As a reminder, these take effect August 30, 2018, but any warning that conforms with them now (as well as any warning that conforms to the current regulations) is deemed a clear and reasonable warning. We'll start with furniture, then move on to motor vehicles and BPA.
This regulation has two components, one for “warnings,” and one for “notices.” The warning must be “affixed to the furniture product in the same manner as other consumer information or warning materials . . . “ and provide as follows:
WARNING: This product can expose you to chemicals including [name of one or more chemicals known to cause cancer, name of one or more chemicals known to cause reproductive toxicity, or name of one or more chemicals known to cause both cancer and birth defects or other reproductive harm], which is [are] known to the State of California to cause cancer or birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/furniture.
In addition, there must be a “notice,” either placed at each public entrance or point of display, or “printed or stamped” on each receipt. Signs must be no smaller than 8 ½ by 11 inches with at least 28-point type, and receipt notices must be no smaller than 12-point type. Either must state the following:
NOTICE: Some furniture products can expose you to chemicals known to the State of California to cause cancer or birth defects or other reproductive harm. Please check on-product label for warning information.
There are a variety of new warning regulations for vehicles, vehicle exhaust, and chemicals related to vehicles. The provisions relating to the retail sale of motor vehicles. Are discussed right after the jump.
Passenger vehicles and Off-road vehicles:
For some years, manufacturers of new vehicles have generally included Proposition 65 warnings in their vehicle manuals. Under the new regulations, vehicles and vessels seem to be the only products for which the use of manuals is sanctioned. But the warning must appear in both the manual and on a non-permanent label or hangtag on the car. In the manual, the warning must be in no smaller than 12-point type enclosed in a box printed or affixed to the inside or outside of the front or back cover or on the first page of text. In addition, the warning must be provided on a non-permanent label attached to the front window on the driver’s side, or if there is no driver’s side window, on a hang tag hung from the rear view mirror, or, if there is also not a rear view mirror, “in another prominent location.” The following warning is required in both places:
WARNING: Operating, servicing and maintaining a passenger vehicle or off-road vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www/65Warnings/ca/gov/passenger-vehicle.
Non-passenger diesel engine exhaust:
For exposure to non-passenger diesel engine exhaust, the regulations require a warning in the manual, similarly placed to the warning for passenger and off-road vehicles, and on a label permanently attached to the product in an easily visible location or an on-screen display if this is used to provide the operator with other warnings and instructions. The content prescribed is as follows:
• Always start and operate the engine in a well-ventilated area.
• If in an enclosed area, vent the exhaust to the outside.
• Do not modify or tamper with the exhaust system.
• Do not idle the engine except as necessary.
For more information go to www.P65warnings.ca.gov/diesel.
Bisphenol A (“BPA”) from Canned and Bottled Foods and Beverages
The addition of BPA to the Proposition 65 reproductive toxicant list in May, 2015 (with warnings required beginning May, 2016) was an exceedingly volatile subject. BPA is very common in containers, and also the key component in many hard plastic products. OEHHA adopted a temporary emergency safe harbor warning regulation, which remains in effect for another year unless renewed. The interim regulation requires a conspicuous 5 X 5 inch sign at points of sale, or on sale web sites, with the following content:
WARNING: Many food and beverage cans have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you consume foods or beverages packaged in these containers. For more information go to: www.P65Warnings.ca.gov/BPA.
CBL has at least two more posts on these comprehensive regulatory changes. The next one will talk about owners manuals (where warnings generally no longer suffice) and special regulations regarding retailer obligations.