Prop 65 plainly directs that any person in the course of doing business (meaning any private company that employs 10 or more persons) must provide a “clear and reasonable warning” before exposing individuals to listed carcinogens and reproductive toxins. When it first adopted regulations implementing the warning requirement in 1989, the Lead Agency (now OEHHA) was faced with turning that language into directions for businesses to follow to comply with the requirement.
The Lead Agency first interpreted the statute to mean that the “clear” part of the warning requirement applied to the language of the message, and the “reasonable” part applied to the method. It decreed that any warning must “clearly communicate that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm.”.And “the method employed to transmit the warning must be reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure.”
Recognizing that these standards were fuzzy, the agency adopted a safe harbor approach, providing specified warnings that were “deemed” to be clear and reasonable, although they were not the exclusive methods. The agency provided safe harbor warning methods and messages for exposures to listed chemicals:
- Consumer products: labeling or point-of-sale warning signs
- Occupational settings: product labeling, signs, or warnings conveyed through the OSHA Hazard Communication Standard
- All other “environmental” exposures: signs, mailings, and public media announcements.
The safe harbor warning message is basically the same regardless of the exposure, and has become ubiquitous – who in the US has not seen a product bearing a label stating: “WARNING: this product contains a chemical known to the state of California to cause cancer”? Under current law, you don’t need to list the chemicals in the product, but the agency’s most recent regulatory proposal will require warnings that identify 12 specific chemicals (e.g., lead, phthalates, acrylamide).
Under the safe harbor, consumer product warnings “shall be prominently placed upon a product’s label or other labeling or displayed at the retail outlet with such conspicuousness, as compared with other words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.”
Companies that stray from the safe harbor risk litigation, where the sufficiency of such warning language or methods is a question of fact (meaning that it is unlikely to be decided by the court before trial). Common pitfalls:
- A warning that says a product “may contain” a chemical known to the State to cause cancer. Public and private enforcers argue that this is an inadequate warning, because it does not actually provide a warning before exposure to the chemical.
- Not labeling products shipped to non-California locations. Sometimes, companies label only products shipped to California customers or to California warehouses of distributors and retailers, figuring that they don’t need to provide warnings for products shipped to other parts of the country. But multistate retailers and distributors often transship products or fulfill California orders from other warehouses. And customers located throughout the world can sell to resellers in California or to consumers over the internet. All it takes is one product being purchased by an enforcer in California without a warning to subject a company to costly litigation.
- Sending warnings to customers and asking them to label, sticker, or post at retail, and assuming that the manufacturer has done all that is necessary to comply. If you don’t have the consent of the customer, and/or have the ability to monitor compliance and fail to do so, the courts may hold you responsible.
- Assuming that changing the label by the date a warning is required is all that is necessary. The law allows a 12-month “grace period” after the listing of a chemical to require a warning. Sometimes, businesses do not account for products offered at retail when the grace period expires. The enforcers are often in stores the next day looking for products that contain listed chemicals and hold both the manufacturer and retailer responsible for such products.