TOXIC TORTS: "Clear and Unreasonable" Changes to Prop 65


California’s Office of Environmental Health Hazard Assessment (“OEHHA”) recently adopted revisions to the “clear and reasonable” warning requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as “Proposition 65”) that will have a dramatic impact on businesses operating within California. Specifically, businesses will now be required to provide greater detail in their warnings to consumers, and they can no longer rely upon their current warning practices to shield them from potential liability.

Proposition 65 was enacted in 1986, in part, to ensure that consumers of a business’ product received adequate warnings regarding the potential hazardous or adverse effects of chemicals contained in said products, particularly those that may cause cancer, birth defects and/or reproductive harm. The hazardous chemicals which require warnings consist of a wide range of chemical substances, both naturally occurring and synthetic. These chemicals include, but are not limited to, common household products, food, drugs, dyes or solvents, and additives and ingredients in pesticides. Failure to provide a “clear and reasonable” warning may subject a business to civil liability and/or injunctive relief under Health & Safety Code section 25249.6.

On August 30, 2016, OEHHA revised Proposition 65 to broaden the “clear and reasonable” warning requirement by imposing additional requirements, including: (1) specific chemical identification on the warning label, (2) on-product labeling directing consumers to a new warning website, (3) specific direction for the appearance, location and language of the warning, and (4) non-English language warnings certain products that contain other non-English labeling. For example, businesses will be required to specifically identify on its warning at least one chemical for each endpoint (i.e. cancer and/or productive toxicity) covered by the warning. Under the previous standard, businesses fulfilled their requirements with a general warning that stated that its product contained “chemical(s) known to the State of California” to cause cancer and/or reproductive toxicity. Additionally, the new warnings must also include “a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline”, and be placed to the left of the warning, in a size no smaller than the height of the word “WARNING.” See Cal. Code Regs. Title 27 section 25604(a).

The duty to provide warnings extends to the “manufacturer, producer, packager, importer, supplier, or distributor of a product” as any of the foregoing “can” provide the warning. See Cal. Code Regs. Title 27 section 25600.2(b). It is unclear whether this will be interpreted to mean that each business performing one of the foregoing enumerated functions will have an independent duty to warn. Nevertheless, all businesses operating in California should be alerted to the new and broader warning requirements set forth by the OEHHA in order to better protect itself from potential liability.

Although the changes to the “clear and reasonable warning” standard may seem daunting - or even unreasonable to the average business owner - the regulations will shortly be part and parcel to doing business in California. These final regulations are slated to take effect on August 30, 2018, businesses operating in California should begin to assess how the new regulations will impact its operations, and develop a strategy for implementation. Once these regulations take effect, we expect see a heightened level of attention on the sufficiency of products warnings labels by plaintiffs’ attorneys across the state.

Poole Shaffery has the knowledge and experience to guide the California business owner into the future of Proposition 65. Whether the need is for consultation to ensure compliance with the new standards or to defend a business after a perceived failure to comply, Poole Shaffery 's team of litigators and transactional attorneys is here to provide the California business owner with the tools to overcome any challenge brought on by Proposition 65's new directive.

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