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Are We Seeing The Beginning of Proposition 65 “Bad Warning” Claims?

When the California Office of Environmental Health Hazard Assessment (OEHHA) entirely revamped the Proposition 65 safe harbor warning regulations in August 2018, legal practitioners warned that those changes could trigger a wave of “bad warning” enforcement actions. That prediction appears to be coming true.

OEHHA’s new safe harbor warning regulations impose a number of new requirements, including the requirement that online warnings be provided for those products that bear warnings and are sold online. This requirement seems to be becoming an attractive target for private enforcers: in recent Proposition 65 Notices of Violation (NOVs), the alleged failure to provide online warnings appears to be the sole basis for the alleged violation. In some instances, NOVs have even asserted that Proposition 65 itself requires the use of online warnings. In other words, unlike the typical Proposition 65 claim alleging that no warning at all was provided, these NOVs appear to allege that warnings were provided but were “bad warnings,” i.e., they did not comport with the safe harbor regulations.

However, Proposition 65 does not dictate how warnings are to be provided. And, as OEHHA itself has made clear, the safe harbor warning requirements are not mandatory. A business may provide Proposition 65 warnings using any text or method of transmission it wishes, as long as the warning meets the statutory requirement of being “clear and reasonable.” OEHHA (and, in 1987, OEHHA’s predecessor) developed the safe harbor regulations in order to assist the regulated community in avoiding disputes about what is a “clear and reasonable” warning. Although a business is well-advised to implement safe harbor warnings in order to avoid such disputes, nothing in Proposition 65 or its regulations require their use.

Private enforcers who mislead alleged “violators” about the law’s warning requirements aren’t doing anybody any good. Proposition 65 has frequently been criticized as being misused in order to “shake down” businesses. These misleading NOVs only perpetuate that impression.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

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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.