1. Consumer Product Warnings

 Prop 65 requires manufacturers, distributers, or retail sellers of consumer products to provide a “clear and reasonable” warning to any individual in California prior to exposing that individual to a chemical known to the state to cause cancer or reproductive toxicity. The manufacturer, producer, packager, importer or distributor of a product has the primary burden of complying with Prop 65 warning obligations by either: (1) affixing a warning label to the product bearing a warning; or (2) providing a written notice directly to the authorized agent for a retail seller. Beyond the baseline “clear and reasonable” standard, the state has issued a more conservative “safe harbor” warning that, when followed verbatim, ensures compliance with Prop 65. While businesses are not required to use safe harbor warnings, they must be prepared to defend use of alternative warnings against potential challengers.

(a) Content of Consumer Product Warnings

Beginning August 30, 2018, safe harbor warnings generally will:

• need to be preceded to the left of the all-bold and all-capitalized word “WARNING” with a yellow triangle surrounding an exclamation mark:  OEHHA provides links to download several sizes of the warning symbol required to be included on most safe harbor warnings here;
• have to identify at least one chemical from each category (carcinogen verses reproductive toxicant, or both, if applicable); and
• direct the reader to the state website with additional information about Prop 65 and associated chemical exposure risks.

Businesses may opt to provide a short-form “on-product” warning on their consumer products instead of the above warnings so long as they include all of the following elements:

• the triangle symbol;
• the word WARNING (in all caps and bolded);
• a reference to “cancer” or “reproductive harm” (or both), as appropriate; and
• a reference to the state Prop 65 website.

In other words, this on-product warning presents a limited option for not having to list specific chemicals.

(b) Notable Exceptions

Businesses need not comply with the requirements of the August 2016 version of the Prop 65 regulations in very limited situations. In these narrow situations, businesses can continue to utilize the current safe harbor warning language and will not need to adopt the new safe harbor warning language provided in the updated version of the regulations.

(i) Court-Approved Warnings:

A warning agreed upon in a court-approved settlement or final judgment can continue to be used and will be deemed a “clear and reasonable” warning for that exposure (assuming it is reasonably conveyed). This exception, however, only pertains to the parties to the settlement or court order.

(ii) Manufactured Prior to August 30, 2018:

A consumer product that is manufactured prior to August 30, 2018, and labeled with a warning that is compliant with the September 2008 version of the regulations is deemed to be compliant with the new regulations. These products do not require a new warning. The date the product is available for purchase does not determine whether the product should have a new warning. However, to the extent the manufacturer is unable to prove the date of manufacture, you are opening yourself up to potential claims requiring defense costs to resolve.

2. Occupational Exposure Warnings

An occupational exposure is defined as “an exposure to an employee at his or her place of employment” (in California). In an occupational setting where a warning is not required for a given chemical exposure by federal or state agencies regulating occupational safety and health, a Prop 65 warning may be required. In occupational settings where a state or federal occupational safety and health standard does not apply and a Prop 65 occupational exposure warning is required, an employer may use the method and content appropriate for a consumer product or environmental exposure (whichever is appropriate).

3. Environmental Exposure Warnings

Environmental exposures are exposures that occur as the result of contact with an environmental source (for example, ambient air, indoor air, drinking/standing/running water, soil, vegetation, or humanmade or natural substances or objects) through inhalation, ingestion, skin or other contact with the body but are not otherwise consumer product or occupational exposures. The new safe harbor warnings for environmental exposures generally contain similar requirements as outlined above for consumer warnings. The language of the warning, however, differs from the safe harbor wording for consumer products and the current warning for environmental exposures. Notably, environmental safe harbor warnings now must state that “entering” an area can expose an individual to an exposure. 

Businesses have several options to transmit an environmental exposure warning, such as posting warning signs in the affected area (for indoor environments or outdoor spaces with clearly defined entrances), mailing notices to each occupant in the affected area or posting quarterly warnings in relevant newspapers. A few notable changes include:

• font size and language requirements when posting a warning sign in an affected area; and
• for environmental exposure warnings mailed (electronically or otherwise) to each occupant in the affected area or published in a newspaper, these warnings must include a map that clearly identifies the affected area.

4. New Specialized Industry, Area and Product Warnings

The updated Prop 65 regulations include several specialized warning requirements specific to targeted industries, areas or products that are new and may require updating your current warnings: 

Diesel Engines: For consumer product exposures to diesel engine exhaust from equipment other than passenger vehicle engines. 

Petroleum Products: For environmental exposures to petroleum products from industrial operations and facilities other than from service stations and vehicle repair facilities.

Service Stations and Vehicle Repairs: For environmental exposures from service stations and vehicle repair facilities. 

Enclosed Parking Facility: For exposures that occur in an enclosed parking facility. 

Vehicles: For exposures that occur during the operation, service and maintenance of a passenger vehicle or an off-highway motor vehicle. 

Furniture Products: For consumer product exposures from furniture. 

Raw Wood Machines that Generate Wood Dust: For consumer product exposures to wood dust by drilling, sawing, sanding or machining raw wood products. 

Designated Smoking Areas: For environmental exposures from a designated smoking area. 

Hotels: For exposures that occur in hotels, defined as “any type of transient lodging establishment, including but not limited to hotels, motels, bed and breakfast inns, resorts, spas, ski resorts, guest ranches, agricultural homestays, tourist homes, condominiums, timeshares, vacation home rentals and extended stay establishments in which members of the public can obtain transient lodging accommodations.” 

Dental Care: For exposures that occur during the delivery of dental care.

Amusement Parks: For exposures in amusement parks, defined as “any permanent facility or park providing amusement rides for use by the public.” 

Recreational Vessels: For exposures that occur during the operation or maintenance of a recreational vessel (as defined in the California Harbor and Navigation Code). 

5. Updated Specialized Industry Warnings

The updated regulations include changes to exposures to several specialized industries including the following listed industries. We note that on December 6, 2017, OEHHA published clarification and guidance for certain industry-specific provisions including for food and beverages served or sold at restaurants and furniture product exposures. These clarifications, along with others, are further detailed in Reed Smith’s client alert New Amendments to Proposition 65 Provide Clarity and Guidance to Clear and Reasonable Warning Requirements (located here). 

(a) Food Exposure:

The safe harbor warning for food exposures, including dietary supplements, must include the word WARNING (in all caps and bolded). The triangle warning symbol is not required in the safe harbor warning content for food exposure warnings.

If a food exposure warning is provided on a food product label, it must be set off from other surrounding information and be enclosed in a box. Where a specific food product sign, label or shelf tag used to provide a warning includes consumer information other than English, the warning must also be provided in that language in addition to English.

(b) Alcoholic Beverage Exposure:

The new regulations carry over the existing warning for alcoholic beverages with the exception of the addition of the URL for the state’s Prop 65 website. The new regulations include specific requirements for the transmission of alcoholic beverage exposure warnings through use of a sign or notice (in the area where alcoholic beverages are served and/or at each retail point of sale or display), placement in a menu or list, and for alcohol package delivery services. These warnings must be provided in English and in any other language used for labeling or advertising the product on the premises.

(c) Food and Beverage Exposure (Restaurants):

The new safe harbor warning for food and beverage exposures for restaurants or other facilities that sell food or non-alcoholic beverages primarily for on-site consumption must include the word WARNING (in all caps and bolded). The triangle warning symbol is not required in the safe harbor warning content for food exposure warnings.

A restaurant may transmit the warning through use of one or more method identified in the new regulations, including use of a sign placed at each public entrance to the restaurant or facility, a notice or sign placed at each point of sale and/or a warning placed on a menu or list describing food or non-alcoholic beverage offerings. The warning must be provided in English and in any other language used on other signage or menus provided on the premises.

(d) Prescription Drug Exposure and Emergency Medical or Dental Care:

OEHHA has substantially retained the existing prescription drug exposure provisions and the regulatory language concerning emergency or urgent medical or dental care.

If you have questions or would like additional information on the material covered in this alert, please contact one of the authors (listed below) or the Reed Smith lawyer with whom you regularly work. While we regularly defend clients in Prop 65 claims, we would much rather work with you pre-emptively so that you can avoid such claims.

Client Briefing 2018-017