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OEHHA Publishes Translations of New Proposition 65 Safe Harbor Warnings

The California Office of Environmental Health Hazard Assessment has published translations of the new Proposition 65 safe harbor warnings. The translations, intended to assist businesses opting to use the new warnings, are provided in Spanish, Chinese, Vietnamese, French, and Tagalog. OEHHA cautions, however, that these translations represent the agency’s “best efforts” in translating the safe harbor warning text, and that businesses “may wish to consult with a translator and legal counsel regarding the accuracy and applicability of translated warning content for a specific exposure.” Businesses needing to translate their safe harbor warnings should closely examine OEHHA’s translations: aside from the translation itself, there may be punctuation or other elements which, if not complied with, may lead to an enforcer’s argument that the warning does not meet the safe harbor’s requirements. For example, the French word “et” is in all capital letters in the translated short, on-product combination warning.

On August 30, 2016, OEHHA adopted new Proposition 65 safe harbor warning regulations. These regulations become effective August 30, 2018 and, during this interim period, businesses may use either the new safe harbor warnings or the “old” ones.

Under Section 25602(d) of the new regulations, “[w]here a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English.” Similarly, under Section 25604, safe harbor warnings for environmental exposures must be provided in languages other than English in specified circumstances.

For consumer products exposure warnings, “consumer information” triggering the translation requirement is best defined by what it is not, than by what it is. Under Section 25600.1(c),

“Consumer information” includes warnings, directions for use, ingredient lists, and nutritional information. “Consumer information” does not include the brand name, product name, company name, location of manufacture, or product advertising.

With “consumer information” defined so broadly, businesses should be aware that innocuous phrases such as “For Household Use Only” may trigger the obligation to translate the safe harbor 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.