Skip to Content Top

TOXIC TORT: California Appellate Court Halts Prop. 65 Coffee Labeling Trial

|

As discussed in our last article, California’s Proposition 65 (also known as the Safe Drinking Water and Toxic Enforcement Act of 1986) was recently revised and became effective as of August 30, 2018. We highlighted the most significant changes to Proposition 65, including the new warning labels required for any products manufactured, distributed, or sold in California containing a listed chemical. In this article, we will focus on how the revised Proposition 65 will affect the workplace.

Proposition 65 was codified by California Health and Safety Code sections 25249.5 through 2549.14 and the corresponding regulations can be found in Title 27, Division 4, Chapter 1 of the California Code of Regulations (sections 25102 through 27001). Article 6 (§§25600 – 25607.33) covers warnings to chemicals on a list known as the “Proposition 65 list.” This list contains almost 1,000 chemicals, both naturally occurring and synthetic, that are known to California to cause cancer or birth defects or other reproductive harm. Exposures to chemicals can include using pesticides, common household products, food, drugs, dyes, or solvents, as well as chemicals used in manufacturing and construction, or byproducts of chemical processes, such as motor vehicle exhaust.

As noted by the Office of Environmental Health Hazard Assessment (also known as “OEHHA”), the administrative agency responsible for implementing and overseeing Proposition 65 in California, “the warnings regulations do not address the question of whether a warning is required; rather the regulations provide guidance on how to provide a warning once a business has made a determination that warning is required. The warning regulations do not require a business to perform any testing.” (Emphasis added.)

It is important to note that businesses with fewer than 10 employees are exempt from the warning requirements, as well as businesses where exposures they cause are so low as to create no significant risk of cancer or are significantly below levels observed to cause birth defects or other reproductive harm. OEHHA has thus developed over 300 regulatory safe harbor levels, which constitutes a level of exposure to a listed chemical that does not require a warning for chemicals included in the Proposition 65 list if the exposure falls below the specified level.

For those businesses who are not exempt, Title 27, Code of California Regulations, section 25600.1, subdivision (k) defines “occupational exposure” as “an exposure to any employee at his or her place of employment.” Once it is determined that a warning is necessary given the potential exposure to a chemical listed on the Proposition 65 list at the workplace, a business can choose to either use the “clear and reasonable” warning methods and content in Article 6, which provides a “safe harbor” against enforcement actions for businesses that choose them, or use other warning methods and content. However, the latter method increases the likelihood that the warning method will be challenged by a public or private enforcer and therefore, the business may have to defend itself in legal proceedings.

When an occupational exposure involves a chemical that requires a warning under the federal or California Hazard Communication Standard, businesses are now deemed in compliance with the warning requirements under Proposition 65 as long as the business “fully complies with all warning information, training, and labeling requirements of the federal Hazard Communication Standard (29 Code of Federal Regulations, section 1910.1200 (Feb. 8, 2013)), hereby incorporated by reference, the California Hazard Communication Standard (Title 8, California Code of Regulations section 5194), or, for pesticides, the Pesticides and Worker Safety requirements (Title 3, California Code of Regulations section 6700 et seq.).” (See 27 CCR § 25606, subd. (d).) Therefore if a business already has a Hazard Communication program in place and as long as the program complies with at least the California Hazard Communication Standard (which incorporates the federal Standard), then nothing further is required to comply with Proposition 65.

When an occupational exposure involves a chemical that does not require a warning under the federal or California Hazard Communication Standard but does require a warning under Proposition 65, then a warning method complying with Sections 25605 and 25607 is recommended which involves posting warning signs as follows:

  • Location:
    • At all public entrances to the affected area; and
    • Be provided in a conspicuous manner and under such conditions as to make it likely to be seen, read, and understood by an ordinary individual in the course of normal daily activity.
  • Format:
    • Be provided in English and in any other language used on other signage in the affected area;
    • In no smaller than 72-point type.
  • Content:
    • Clearly identify one or more sources of exposure (remember, you only need to list those chemicals that triggered the warning requirement in the first place; if a listed chemical is present but the exposure falls below the “safe harbor” level, then you do not need to include the listed chemical);
    • Include “WARNING” in all capital letters and bold print:
    • Include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”;
    • For exposures to listed carcinogens, the words, “Entering this area can expose you to chemicals known to the State of California to cause cancer, including [name of one or more chemicals], from [name of one or more sources of exposure]. For more information go to www.P65Warnings.ca.gov.”
    • For exposures to a single carcinogen, the following words may be used: “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”
    • For exposures to listed reproductive toxicants, the words, “Entering this area can expose you to chemicals known to the State of California to cause birth defects or other reproductive harm, including [name of one or more chemicals], from [name of one or more sources of exposure]. For more information go to www.P65Warnings.ca.gov.”
    • For exposures to a single reproductive toxicant, the following words may be used: “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”
    • For exposures to both listed carcinogens and reproductive toxicants, the words, “Entering this area can expose you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm, including [name of one or more chemicals known to cause cancer and name of one or more chemicals known to cause birth defects or other reproductive harm], from [name of one or more sources of exposure]. For more information go to www.P65Warnings.ca.gov.”
    • For exposures to a single chemical that is listed as both a carcinogen and a reproductive toxicant, the following words may be used, “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”

There are other methods to comply when an occupational exposure involves a chemical that does not require a warning under the federal or California Hazard Communication Standard but does require a warning under Proposition 65, however, we believe the foregoing is the easiest method of complying with Proposition 65. For more information, please contact our office.

Categories: 
Share To: