New Proposition 65 warning regulations finalized in 2016 will officially take effect on August 30th. As of the effective date of the new regulations, the warning signage currently in use will no longer comply with safe harbor requirements under state law. In this regard, members should review their warning practices and signage and revise accordingly by the August 30th deadline. As you will recall, Proposition 65 requires businesses with 10 or more employees to give a clear and reasonable warning to individuals before knowingly and intentionally exposing them to a chemical listed as known to cause cancer or reproductive toxicity. The new regulations continue to provide a business the opportunity to use warning methods and content that the Office of Environmental Health Hazard Assessment (OEHHA) has deemed “clear and reasonable” and in doing so help those businesses avoid litigation. More specifically, the new regulations provide specific details on what detailed information should be provided to the public to avoid litigation, including:
- A clear statement that a person “can be exposed” to a listed chemical;
- The names of one or more listed chemicals that are the subject of the warning as causing cancer or reproductive toxicity;
- Specific mention of whether the chemical exposure for which the warning is being provided is a carcinogen or reproductive toxicant or a listing of both, as applicable;
- A link to www.P65Warnings.ca.gov for supplemental information; and
- Information about the source of the exposure for environmental warnings.
Notably, the new warnings regulations do not address the question of whether a warning is required; rather, the regulations provide guidance on how to provide a warning once a business has made the decision a warning is required. Other provisions of the new regulations that may be relevant for members may include, but not be limited to:
- A standalone warning may be required at public entrances to a facility;
- In addition to warnings provided at a member facility, under the safe harbor provisions of the regulations, warnings may also be required for purchases made over the internet;
- The regulations for environmental exposures may require the warning to include a map noting where at a facility exposure may occur;
- Separate occupational exposure warnings;
- Separate diesel engine exposure warnings;
- Separate vehicle exposure warnings;
- Separate petroleum products warnings; and more.
An example of an environmental exposure warning under the regulation may look like:
WARNING – Entering this area can expose you to chemicals known to the State of California to cause cancer, including lead, from batteries. For more information go to www.P65Warnings.ca.gov.
These new regulations are intended to expand access to information for consumers regarding exposures, be more meaningful and provide more specificity for the content of safe harbor warnings. Businesses who utilize the new safe harbor warnings would continue to be assured of compliance with the regulations, helping them avoid litigation.
For more information, please see https://oehha.ca.gov/media/downloads/crnr/art6regtextclean090116.pdf.