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The California’s Office of Health Hazard Assessment (OEHHA) has finally released new “Safe Harbor” warning regulations for Proposition 65 after considering them for more than a year.The intention of the new regulations is to provide consumers “more specificity” about the contents of chemical products sold in California. The regulations will take effect by August 30, 2018 and are set forth in California Health and Safety Code sections 25600, et seq.
Between now and the date the regulations will take effect, manufacturers have two options. First, they may continue using the warning language permitted under the current safe harbor regulations if the product was manufactured before August 2018. Even if the product is sold after the effective date of the new warning regulations, the current warning language will be considered compliant. Secondly, manufacturers are allowed to employ the new warning language immediately. Furthermore, in a situation where a manufacturer’s product has previously been the subject of a court-approved order or final judgment, any warning language that complies with that order or judgment is also applicable with the new law.
One of the requirements of the revised regulations will entail manufacturers listing the name of one or more of the specific Proposition 65 chemicals that initiated the warning label. As of now, the only requirement of safe harbor warnings is a generic reference to “chemicals,” which leaves the consumer with uncertainty as to whether the product contains lead, phthalates, or any of the other 800 chemicals listed on the Prop 65. Another requirement of the new regulations is that that a pictogram must accompany the warning in the form of a black exclamation point enclosed in a yellow equilateral triangle with black margins. The pictogram may be printed in black and white in the absence of a yellow on the product’s label. The warning must carry specific language and an internet link to the new OEHHA internet warning site addition to containing the new pictogram:
WARNING: This product can expose you to chemicals including [one or more of the listed chemicals] which [is/are] known to the State of California to cause cancer and other reproductive harm. For more information, go to www.P65Warnings.ca.gov.
The intention of the warning language is to catch consumers’ attention and provide them with ready access to additional information about Proposition 65. The font size of the warning must not be less than 6-point font and not be smaller than the largest font size used for other consumer information provided on the product. The yellow pictogram must not be smaller than the word “WARNING,” which must all be capitalized.
Although the new warning language must be used on the majority of products sold in California, there are different languages stated by the regulation to be used for product categories such as food, alcohol and raw wood. Manufacturers and retailers will need to conspicuously display either the full text of the warning or a hyperlink with the word “WARNING” on the product display page, for products sold over the internet. The existing common practice of including a hyperlink with only the phrase “California customers click here” will no longer be acceptable after 2018 date that the regulation will take effect.
OEHHA’s new regulations also go further in shifting the burden of warning from retailers to manufacturers. Products will need to be shipped by their manufacturers with warning labels attached, or they must provide the retailer with all of the required warning materials. Whenever a manufacturer decides to provide warning materials to the retailer, receipt must be confirmed by the retailer within six months and again annually after that. The new regulations have also made it easier for private plaintiff “bounty hunters” to bring lawsuits. If a private plaintiff asks, it will be required of retailers to identify the manufacturer or supplier of the product. Currently, retailers are not obliged to give out information to a private plaintiff.
One thing that has remained unchanged is that the new regulations do not provide any guidance about the relative risk of any potential chemical exposure. For example, a refrigerator may require a warning because the chemical component of its power cord is listed on the Proposition 65. Most consumers however do not handle the power cord after installing the refrigerator; therefore, there is a question of who the warning really helps. That remains to be seen. Currently, it seems the primary beneficiary the new regulations are private plaintiffs while consumers are unnecessarily alarmed about products that may pose no health hazard.