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TOXIC TORT: New Regulations for Proposition 65 Warnings

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This past August, new regulations relating to Proposition 65 compliance took effect in California. These changes are designed with the intent to make warnings required under Proposition 65 for approximately 900 listed chemicals more effective for the public while at the same time, giving businesses clearer guidelines on how and where to provide such warnings.

In 1986, California voters approved Proposition 65, a ballot initiative designed to not only protect drinking water sources from toxic substances that may cause cancer and birth defects, but to protect Californians from exposure to such chemicals generally by requiring warnings.

Proposition 65, also known as The Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide warnings to consumers advising them of an exposure to a listed substance maintained by California’s Office of Environmental Health Hazard Assessment (OEHHA), which administers Proposition 65 and is part of the California Environmental Protection Agency (CalEPA). This list contains a wide range of naturally occurring and synthetic chemicals used in manufacturing and construction, byproducts of chemical processes such as motor vehicle exhaust, common household products, drugs, dyes, or even food.

The new regulations adopted by OEHHA that become effective on August 30, 2018, include the following for all warnings:

  1. The name of at least one listed chemical that prompted the warning.
  2. The Internet address for OEHHA’s new Proposition 65 warnings website, www.P65Warnings.ca.gov, on the warning.
  3. A triangular yellow warning symbol.

Additional warnings that may be triggered include:

  1. Adding new tailored warnings that provide more specific information for certain kinds of exposures, products, and places;
  2. Provide website warnings for products purchased over the Internet; and
  3. Provide warnings in languages other than English in some cases (i.e., when signage, label, or shelf tag includes information in a language in addition to English).

Under the old regulations, a Proposition 65 warning typically stated: “WARNING: This product contains a chemical known to the State of California to cause cancer.” However, under the new regulations, a sample new warning will now state: “⚠ WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”

The new regulations also clarify that manufacturers have the primary responsibility for providing Proposition 65 warnings. However, the new warning requirements will not be required for products manufactured before August 30, 2018 as long as they meet the requirements that were in effect at the time of their production.

According to OEHHA, it adopted the new regulations in response to California Governor Edmund G. Brown Jr.’s call for changes to “require more useful information to the public on what they are being exposed to and how they can protect themselves.”

Although the new regulations may provide some clarity especially with respect to safe harbor warnings, unfortunately, what has not changed is the ability for private enforcement by attorneys for alleged Proposition 65 violations. In 2017, approximately $45 million in judgments and settlements in 2017 were awarded/reported, of which approximately 75% was designated as “attorney’s fee and costs.”

More on this new regulation and its impact as to warning requirements for occupational exposures in next month’s issue of the California Tort Defender.

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