California’s Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires warnings on products or areas that could expose visitors, workers or consumers to carcinogens or reproductive toxins. As of August 30, 2018, the requirements will change and businesses wanting “safe harbor” protection (meaning that their conduct is deemed in compliance with the new rules) will need to provide updated warnings for consumer, occupational and environmental exposures.
Why the change?
- New warnings will be more meaningful and useful to the public
- Businesses will now receive clearer guidelines on how and where to provide warnings
Highlights of the new system:
- Requires “tailored” warnings that provide more specific information
- Specifies additional requirements for certain kinds of exposures, products and places
- Requires website warnings for products purchased via the Internet
- In some case, requires warnings in languages other than English
- Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings
Ultimately, businesses will be required to review the listed chemicals present in their products and facilities and provide a particular warning based on the listed chemicals and the method of transmission in order to comply with the safe harbor provisions.
While most of the information available online focuses on the labeling of consumer products, businesses also have specific requirements for environmental and for occupational exposures.
How will these changes affect Environmental Exposure Warnings?
If a business determines that a visitor to their facility can be exposed to a listed chemical at a level that requires a warning, then Proposition 65 warnings should be provided for these exposures.
Until now, many businesses have used the following Proposition 65 warnings for Environmental Exposure:
Per California’s updated Office of Environmental Health Hazard Assessment (OEHHA) regulations, warnings must now:
- State that areas “can expose you to” a Proposition 65 chemical (previously, they could state that areas merely “contained” such a chemical, as in the example picture accompanying this post)
- Include the name of at least one listed chemical that prompted the warning
- Include the internet address for OEHHA’s new Prop65 warnings website, www.P65warnings.ca.gov – this site offers additional information on the health effects of listed chemicals and ways to reduce/eliminate exposure
- Include a triangular yellow warning symbol on most warnings
- Be printed in no smaller than 72-point type
- Be provided in English and in any other language used on other signage in the affected area
For indoor environments or outdoor spaces with clearly defined entrances, such warning signs must be posted in conspicuous locations at all public entrances to the affected area. Here are some examples of entrance sign verbiage:
For more warning examples, see: https://www.p65warnings.ca.gov/sample-warnings-and-translations-businesses.
What about Occupational Exposure Warnings?
If your company complies fully with all warning information, training and labeling requirements of the Federal Hazard Communication Standard, the California Hazard Communication Standard, or, for pesticides, the Pesticides and Worker Safety requirements, you may meet the Proposition 65 requirements for occupational warnings.
In the event your employees experience occupational exposures to a Proposition 65 chemical with no warning requirement under these laws, a “clear and reasonable” Proposition 65 warning may still be required. Warnings would mirror those used for Environmental Exposure.
Must these safe-harbor warnings be used?
Answered simply, No. The safe-harbor warnings are just that – safe harbors. That being said, they are one of the most effective methods of avoiding costly litigation and Proposition 65 enforcement actions. Businesses have the option to produce different warnings that are “clear and reasonable” if they believe they comply with the law. Additionally, if a company has fewer than 10 employees, it is exempt from Proposition 65’s warning requirements.
In summary, businesses who want to limit their liability and maintain safe harbor protection will have to do their due diligence to determine the warning that best serves their business interests while being compliant with the law.
For more information on Proposition 65 Warning Requirements, you can visit the following California OEHHA sites:
Comparison of current and new warning regulations: https://oehha.ca.gov/media/downloads/crnr/side-sidearticle6.pdf