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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