By Laurie Berger (May 7, 2019)
Can you include “extra” language in your Prop 65 warning under the new safe harbor regulations?
Effective August 20, 2018, new safe harbor regulations under Proposition 65 went into effect. Among other things, the new regulations require that the warning identify at least one chemical that is the subject of the warning – and, like the previous safe harbor regulations – provides specific language for the warning.
The goal of the new regulations is to (1) make warnings more meaningful and useful to the public, (2) reduce “over-warning” and (3) give businesses better guidance on how and where to provide warnings. One of the new provisions, (§ 25601(e)), provides that the content of the warning may contain information that is supplemental to the content required by the regulations, but only to the extent it:
(1) identifies the source of the exposure, or
(2) provides information on how to avoid or reduce exposure the identified chemical or chemicals.
The supplemental information cannot be substituted for the required warning. The basis for the regulation is that OEHHA determined that extraneous or supplemental information could detract or controvert a warning.
In order to benefit from a safe harbor warning, a business must therefore limit any supplemental information except as specified in the regulations (as noted above). If your business wants to provide other information within a warning you can do so, but the warning will not be a safe harbor warning.
During the public comment period, some commentators expressed concerns that restricting the warning language in this matter could violate First Amendment free speech rights. Others suggested that it restricts a business from providing contextual information for customers. OEHHA responded that a business can engage in public discourse regarding listing decisions and methodology, or provide other kinds of supplemental information, but that information just may not be in the warning itself if the business wants to benefit from a safe harbor warning.
While a business is not required to follow the safe harbor warning, the common practice is to use the safe harbor language to minimize the risk of litigation. In some cases, however, particularly given the new requirements that specific chemicals must be identified in the warning, some businesses may conclude that additional information should be provided to provide more accurate information. You can still be in compliance with Proposition 65 if you provide warnings with additional information that otherwise comply with the Act, as provided in subsection 25600(f).
Practice Tip: The most conservative approach to ensure Proposition 65 compliance is to stick to the safe harbor language unless the supplemental information is clearly limited to identifying the source of exposure or providing information on how to avoid or reduce exposure. Where appropriate, however, businesses should strategize with counsel to provide additional information in a manner least likely to forfeit the protections of the safe harbor language.
Laurie Berger is a Partner at Environmental General Counsel. She handles a wide range of environmental and health and safety matters, including Prop 65.
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The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.