OEHHA Releases Guidance on Proposition 65 Safe Harbor Warnings

By Jennifer Karpinski Singh

In December 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) released Proposition 65 guidance for website and catalog safe harbor warnings. The guidance, in the form of questions and answers, is intended to clarify the new safe harbor warning requirements that will become fully effective on August 30, 2018.

As an initial note, businesses are not required to comply with OEHHA’s safe harbor provisions and are technically free to use any warning text and method of transmitting warnings in order to comply with Proposition 65 – as long as the warnings are “clear and reasonable” under the statute. However, disputes may arise about whether a warning is “clear and reasonable,” and businesses must be prepared to defend the warnings they use.

To provide certainty to businesses and help avoid disputes on what is “clear and reasonable,” OEHHA (and its predecessor agency back in 1987) developed the safe harbor warning regulations. Businesses relying on the safe harbor warnings need only prove that they complied with the safe harbor warning regulations; they need not separately prove that the warnings are “clear and reasonable.”

In August 2016, OEHHA adopted new safe harbor regulations, the first major revision of the safe harbor requirements in nearly 30 years. The new regulations, codified in Title 27 of the California Code of Regulations beginning at Section 25600, establish requirements for internet and catalog warnings, which OEHHA discusses in its recently released guidance as summarized below:

• For both internet and catalog sales, warnings must be provided to the purchaser prior to completing the purchase, AND a warning must also be provided on or with the product via one of the four methods set forth in Section 25602(a).

Section 25602(a) establishes the following as safe harbor methods of transmitting a warning: (a) point of display warning, (b) “electronic device” warning, (c) on label warning complying with the new warning text set forth in Section 25603(a), or (d) on label short-form warning complying with the new warning text set forth in Section 25603(b).

To help retailers better understand the rationale behind this dual requirement, OEHHA explains that warning online and via catalog prior to sale is similar to the consumer experience at a brick and mortar shop. Put another way, the consumer is best poised to make an informed decision about purchasing the product prior to purchase, versus learning the warning information only upon receipt of the product labeled with a warning.

• For both internet and catalog sales, if the short-form warning is provided on the product label, the online and catalog warning may use the same short-form content. See Section 25603(b).

• Website warnings may provided via a hyperlink using the word “WARNING” that links to the product warning or a picture of the label used on the product. See Section 25602(b).

• Catalog warnings that comply with the warning text requirements of Section 25603(a) must also be provided in the catalog in a manner that “clearly associates” it with the item being purchased. See Section 25602(c).

• The “electronic device or process” safe harbor method of transmitting a warning, referred to in Section 25602(a)(2), does NOT apply to internet or catalog sales, and only applies to retail sellers.

• For both internet and catalog sales, a warning symbol alone (e.g., with the actual warning located elsewhere on the website or catalog) is insufficient to satisfy the Proposition 65 safe harbor requirements. Alternatives include providing a short-form warning, a clearly marked hyperlink to the warning text, or a pop-up warning when the consumer enters a California zip code.

• Primary responsibility for providing warnings resides with the product manufacturers, producers, packagers, importers, suppliers and distributors.
  • To discharge their regulatory responsibility, these entities must either provide a warning on the product label, OR, under Section 25600.2.:
    • (1) Provide written notice and warning materials, including warning language and information for internet warnings, directly to the authorized agent for a retail seller, AND
    • (2) Receive an acknowledgment that the notice and materials were received.

•  However, the retail seller is still responsible for placement and maintenance of warning materials, including warnings for products sold over the internet that are received by the online/catalog retailer. Businesses should carefully review the new requirements at Section 25600.2.

• Out-of-State retailers are NOT exempt! Although nothing in the regulations requires manufacturers or internet sellers to provide warnings outside California, Proposition 65 applies to all businesses with 10 or more employees that ultimately cause exposures in California to listed chemicals in their products.
  • Internet and catalog sellers must remain diligent about determining whether or not their products land in the hands of California consumers.

Private enforcers may well use the opportunity offered by the new safe harbor regulations to pursue “bad warning” claims, i.e., claims that the businesses are not providing clear and reasonable warnings because they have deviated from the safe harbor. As the August 30, 2018 full implementation date looms ahead (212 days to go), businesses need to ensure that they fully understand the new safe harbor requirements – and their pitfalls. Contact Grimaldi Law to learn more.

Jennifer Karpinski Singh, now with Grimaldi Law, has practiced in a broad range of civil litigation since her graduation from the University of North Carolina School of Law in 2005. She has primarily focused on products liability and has successfully defended clients and secured summary judgments in state and federal courts throughout the United States. She is an active member of the California State Bar and the Illinois State Bar.

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