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OEHHA’s “Non-Substantive” Revisions to New Safe Harbor Warnings May Not Be So Non-Substantive…

On January 12, 2017, the California Office of Environmental Health Hazard Assessment published a notice of revisions to the new Proposition 65 safe harbor warning regulations. These revisions, which OEHHA characterizes as “non-substantive,” consist largely of corrections to grammar and punctuation. However, one may have a broader, more substantive effect.

In the text of each of the new safe harbor warnings, OEHHA has included a colon after the word “WARNING.” A useful clarification, the colon now appears in the portion of the regulations requiring the word “WARNING” – and now the colon itself – to be in bold font. Thus, one interpretation of this revision is that, for the warning text to enjoy the benefit of the safe harbor protection, the colon must be bolded as well as the word “WARNING.” Inasmuch as Proposition 65 private enforcement has a history of targeting relatively minor deviations from the safe harbor warning text, businesses should aim to ensure that the word “WARNING” and the colon are in bold font.

In addition, the revisions add the word “also” in the sections imposing internet and catalog safe harbor warning requirements (Section 25602(b) and (c)). By doing so, OEHHA has reinforced, or at least clarified, an important requirement under the new regulations, i.e., warnings must be provided on websites and catalogs for products sold via those methods, even if the product itself already bears a warning.

 

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.