- No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
- Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
- Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!
What Chemicals Need Warning?
This list currently includes more than 850 chemicals. Proposition 65 does not ban or restrict the sale of chemicals on the list. The warnings are intended to help Californians make informed decisions about their exposures to these chemicals in the products they use and the places they go.
What Signs Do I Need & Where Do I Order?
In general, an average automobile dealership may need 8 signs for various locations. A copy of these signs is attached with guidance for posting. Signs may be ordered through your vendor or through your Reynolds & Reynolds representative. Consumer product warning signs must be obtained from the product manufacturer.
What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?
Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply stated that a chemical is present that causes cancer or reproductive harm, but they did not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, which take effect in August 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:
- The name of at least one listed chemical that prompted the warning
- The Internet address for OEHHA’s new Proposition 65 warnings website, http://www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
- A triangular yellow warning symbol “ ” on most warnings
What Are Other Highlights of the New Warnings System?
The new warning regulation also:
- Adds new “tailored” warnings that provide more specific information for certain kinds of exposures,products, and places.
- Provides information for website warnings for products purchased over the Internet
- Provides information for warnings in languages other than English in some cases
- Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings.
Why are Proposition 65 Warnings Changing?
In 2013, Gov. Edmund G. Brown Jr. proposed reforms to strengthen Proposition 65. The Governor called for changes to “require more useful information to the public on what they are being exposed to and how they can protect themselves.” He added, “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”
In 2015, UC Davis researchers interviewed more than 1,500 randomly selected Californians and asked them to compare the new specific warnings to the current generic warnings. The results were dramatic – 77 percent said the new warnings would be more helpful than the current system.
When Will the Changes Take Effect?
In August 2016, the Office of Administrative Law approved the new regulations for improved Proposition 65 warnings. Businesses can currently choose whether to provide the old warning or the new warning as part of the regulation’s two-year phase-in period. Beginning August 30, 2018, the old warning system will expire and businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 will use the
new warning system.
What is the Purpose of the New Proposition 65 Warnings Website?
People who read Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures. The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, anything from furniture products to enclosed parking facilities. It also answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.
Will Businesses Be Required to Provide the New Warnings?
Using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.
Businesses have the option to provide different warnings if they believe they comply with the law. Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.
Will Products Manufactured Before August 2018 Need to Use the New Warnings?
Products manufactured before August 30, 2018 will not need new warnings if they meet the requirements that were in effect at the time of their production.
What Circumstances Will Require Warnings in Languages Other Than English?
When 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. Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.
For Internet purchases, warnings can be provided by including a clearly marked hyperlink using the word WARNING on the product display page.
Which Exposures, Products, and Places Have Specific Tailored Warnings?
In addition to the warnings for chemical exposures from consumer products, the new regulation provides specific warnings for exposures from:
- Alcoholic beverages, food and non-alcoholic beverages, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, and recreational vessels
- Enclosed parking facilities, amusement parks, petroleum products, service stations and vehicle repair facilities, and designated smoking areas
What Are the Warning Responsibilities for Manufacturers and Retailers?
The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning provide warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Proposition 65 chemical.
Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.
Are There Other Regulations to Assist Businesses with Warning Requirements?
In addition to other forms of compliance assistance, OEHHA has regulations that set procedures for requesting advice from the agency including Interpretive Guidelines and Safe Use Determinations.
There is also a procedure for requesting a Safe Use Determination. A Safe Use Determination is a written statement issued by OEHHA that interprets whether specific sets of exposures require warnings. For example, in recent years, OEHHA has issued several Safe Use Determinations related to exposures from diisononyl phthalate (DINP) in vinyl flooring and outdoor furniture products.
Josh Gohlke in the SF Chronicle on May 5, 2018 says “It’s a paradox of life in a place whose supposed tolerance is belied by petty, pointless intrusions of the nanny state – where a person might negotiate clouds of guilt free marijuana smoke only to be scolded for needing a cup of coffee”.
DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at http://www.epaoshablog.com. Your comments/questions are always welcome. Please send them to firstname.lastname@example.org.