new proposition 65 warning regulations - clark hill plc · § old safe harbor warning language must...

New Proposition 65 Warning Regulations


California’s Proposition 65 applies to any product sold in, or sold into the State, and to any location in the State, that can expose people to any of the roughly 900 chemicals that California has found to pose an increased risk for the development of cancer or reproductive harm. The laws apply not just to companies based in California, but also to any company whose products end up being sold to consumers in California.

Any product that contains any of the listed chemicals must provide a warning alerting the customer of the possible exposure to hazardous chemicals. There is standard warning language companies can use—a so-called “safe harbor” warning. A company that distributes an offending product which does not include a warning is subject to civil penalties of up to $2,500 per violation, per day. These penalties can be sought by governmental attorneys or, as is more frequently the case, through private action.

While Proposition 65 has been in existence for more than 30 years, on August 30, 2018 new and more stringent regulations went into effect. The new warning requirements are product-type, location-type, and even chemical-type specific. As such, even companies that had implemented a Proposition 65 warning procedure in the past will have to substantially revise those warnings to remain in compliance.

Executive Summary

While the new requirements vary based upon the product and chemical at issue, every company doing business in California, or whose products are eventually sold in California (even through third parties), should be aware that:

§ The new regulations include changes for the safe harbor warnings for both product-based exposures and environmental-based exposures.

§ The new regulations require that warnings specifically identify at least one chemical (sometimes more) and the specific hazard (i.e., cancer or reproductive harm) related to the exposure.

§ Old safe harbor warning language must be updated to meet the new requirements.

§ For sales made online, the safe harbor warning must be provided to the customer prior to purchase.

§ If companies sell products through catalogs, the catalogs should include the safe harbor warnings.

§ In some instances, manufacturers and distributors can pass the warning obligations onto retailers.

§ The wave of Proposition 65 litigation has continued with roughly 200 new 60-day notices filed each month.


Product-Based Requirements 4

General Safe Harbor Warnings for Consumer Products 4

Ambiguity Regarding Use-and-Care Guides and Manuals 5

Internet Sales 6

Product-Specific Warning Regulations 7

Food 7

Alcoholic Beverages 7

Furniture 8

Passenger Vehicles, Trucks, Vans and Off-Road Vehicles 8

Non-Passenger Diesel Engine Exhaust 9

Recreational Vessels 9

Wood Dust 9

Retailer Liability 10

Environmental Exposure Warnings 11

General Environmental Exposure Warnings 11

Location-Specific Warnings 12

Amusement Parks 12

Dental Offices 12

Designated Smoking Areas 12

Enclosed Parking Facilities 13

Restaurants 13

Service Stations and Vehicle Repair Facilities 14

Petroleum-Based Environmental Exposure 14

Hotels 15

Residential Rental Properties 16

Non-English Language Warnings 17

Conclusion 17

Contacts 18

About Clark Hill 19

Table of Contents

New Proposition 65 Warning Regulations 4

Single Chemical

Where the product contains a single chemical that

causes cancer, reproductive harm or both, the labels are:

WARNING: This product can expose you to

[name of chemical], a chemical known to the State of

California to cause cancer. For more information go to

www.P65Warnings.ca.gov

WARNING: This product can expose you to [name

of chemical], a chemical known to the State of California

to cause birth defects or other reproductive harm. For

more information go to www.P65Warnings.ca.gov


[name of chemical], a chemical known to the State

of California to cause cancer and birth defects or other

reproductive harm. For more information go to


Product-Based RequirementsGeneral Safe Harbor Warnings for Consumer Products

Proposition 65 creates a general safe harbor warning, a default warning that applies where an identified chemical

or toxicant exists but the product is not covered by one of the product-specific warnings. The new warning

requirements for consumer products generally include: 1) an icon, 2) specific language and 3) a website address.

Which warning label is required depends on the number of chemicals implicated and the different end-points (i.e.,

cancer and/or birth defects).

The new regulations impact both product-based exposures and environmental-based exposures.

This paper separates the two areas and discusses each in turn.

Multiple Chemicals

If there are two or more chemicals with different

hazards (i.e., cancer and birth defects), at least one

chemical has to be identified for each end-point. Thus,

for exposure to multiple chemicals with multiple end-

points the labels are:


chemicals including [name of one or more chemical

or chemicals], which is [are] known to the State of

California to cause cancer and [name of one or more

chemical or chemicals] which is [are] known to the

State of California to cause birth defects or other






California to cause cancer and birth defects or other




On the other hand, where there are multiple chemicals

that all lead to a single hazard (i.e., cancer), the warning

only has to list one of the chemicals. In that case, the

warning labels are:







chemicals including [name of one or more chemical or

chemicals], which is [are] known to the State of California

to cause birth defects or other reproductive harm. For


The new regulations also permit “short-form” warnings

to be used on consumer products. While these

warnings allow the company to avoid identifying a

particular chemical, they must be placed on the product

or product label itself. The short-form warnings are:

WARNING: Cancer - www.P65Warnings.ca.gov

WARNING: Reproductive Harm -


WARNING: Cancer and Reproductive Harm -


The short-form warning must be in a font “no smaller

than the largest type size used for other consumer

information on the product” and in no case smaller

than 6-point type.

Ambiguity Regarding Use-and-Care Guides and Manuals

The previous regulations permitted warnings to be

placed in manuals or in use-and-care guides. Under

the new changes this all becomes a little murky. The

original changes set to go into effect repealed the

ability to provide warnings in use-and-care guides. But

in December 2017, the changes were further updated

which made this issue unclear. Following updated

changes, there is now an apparent conflict between the

terms “label” and “labeling.” The term “label” requires

warnings to be printed or affixed to the container of a

product while “labeling” includes items such as package

inserts. This leads to ambiguity regarding whether

manufacturers can continue to provide warnings

in use-and-care guides as opposed to on the actual

packaging or shelf tags. The Office of Environmental

Health Hazard Assessment [OEHHA] has taken the

position that warnings in use-and-care guides are not

sufficient.

Because of this ambiguity, manufacturers should

consider providing warnings in at least one of the

following ways, in addition to any warning in the

product manual or use-and-care guide:

§ A product-specific warning on a posted sign, shelf tag

or shelf sign at each point of display of the product;

§ A product-specific warning via electronic device

or process provided automatically prior to or

during purchase;

§ A warning on the label;

§ A short-form warning located on the label.


Internet Sales

The new regulations regarding internet sales seem

particularly important as they impose significant

new requirements. Under the new regulations the

Proposition 65 warning must be provided to consumers

prior to or during purchase (under the previous

regulations the warning was only required prior to

“exposure”). In order to comply with this requirement,

the warning has to be on the product display page, in

a hyperlink using the word “WARNING” on the product

display page, or by otherwise prominently displaying

the warning to the purchaser prior to completing the

purchase. A warning is not prominently displayed if the

consumer has to search for it in the general content of

the website.

One method some companies use for internet sales is

to link the potential warning to the purchaser’s zip code

for shipping. When a California zip code is entered, the

warning is triggered. But, if a non-California zip code is

entered the warning is not.1

The new internet sales regulations are a distinct

and important problem for manufacturers who sell

to distributors in other states who then—if not told

otherwise—sell via the internet into California.

1 Indeed, early-2019 saw the first series of claims based solely on a failure

to warn online. It is likely that such claims will continue, and increase, over

the coming year.


Food:

As with the general consumer product warning, the

food-based language depends on the chemical(s)

implicated and the end-point(s). So for example, where

there is a listed carcinogen, the warning language is:

WARNING: Consuming this product can expose

you to chemicals including [name of one or more

chemicals], which is [are] known to the State of

California to cause cancer. For more information go

to www.P65Warnings.ca.gov/food

And where there is exposure to a listed reproductive

toxicant, the warning language is:

WARNING: Consuming this product can expose

you to chemicals including [name of one or

more chemicals], which is [are] known to the



www.P65Warnings.ca.gov/food

As with the general product warning, a different

warning is provided where there are multiple

chemicals/toxicants that cause multiple end-points or

where a single chemical causes multiple end-points.

The new regulations do not require any specific

methods of transmitting the food warning other than

the requirement that the warning be in a box (if on a

label) and the other general warning requirements are

followed.

Product-Specific Warning Regulations

Alcoholic Beverages:

For alcoholic beverages, the warning content is:

WARNING: Drinking distilled spirits, beer, coolers,

wine and other alcoholic beverages may increase

cancer risk, and, during pregnancy can cause birth

defects. For more information go to

www.P65Warnings.ca.gov/alcohol

Unlike with the food warnings, the new regulations

include very specific provisions regarding the method in

which this warning is transmitted. The warning must be

transmitted in at least one of the following four ways:

§ An 8½ by 11 inch sign in no smaller than 22-point

type, placed at eye level so it is readable and

conspicuous to customers as they enter the area or

areas where alcoholic beverages are served.

§ A notice or sign at least 5 by 5 inches, with at least

20-point font enclosed in a box, at each retail point of

sale or display so as to assure that it is readable and

conspicuous.

§ For beverages provided for consumption on premise,

whether served by “food or beverage persons” or

sold over-the-counter, the warning must appear on

a menu or list identifying the alcohol sold. If there is

no such list, then on the general food and beverages

menu or list.

§ For beverages sold or distributed through package

delivery services, the warning must be on or in the

shipping container or delivery package, in font no

smaller than largest type used for other consumer

information (and in no case no less than 8-point font),

and readable and conspicuous to the recipient prior

to consumption.

In addition to the general consumer product warnings,

the new regulations contain numerous product-

specific warnings. The products covered are: food,

alcoholic beverages, furniture products, passenger

and off-road vehicles, non-passenger diesel engine

exhaust, recreational vessels, and wood dust.

The product-specific warnings are detailed below.


Obviously, depending on how the alcohol is sold or

distributed, not all of these methods of warning are

available or applicable. But in all cases, at least one

method must be used. Online alcohol sales have been

a target of Proposition 65 claims. At least one Plaintiff

firm has specifically targeted alcohol retailers for a

failure to provide online warnings. While there is some

question as to whether online warnings are required

for alcohol sales, it is something of which companies

should be aware.

Furniture

For furniture product exposures, the new regulation

requires both a “warning” and a separate “notice.”

The warning must be “on a label affixed to the furniture

product in the same manner as other consumer

information or warning materials…” and state:


chemicals including [name of one or more chemicals

known to cause cancer, name of one or more chemicals

known to cause reproductive toxicity, or name of one

or more chemicals known to cause both cancer and

birth defects or other reproductive harm], which is

[are] known to the State of California to cause cancer

or birth defects or other reproductive harm. For more

information go to www.P65Warnings.ca.gov/furniture

In addition to the warning there must be a “notice,”

provided by sign or receipt, stating:

NOTICE: Some furniture products can expose you to

chemicals known to the State of California to cause

cancer and/or birth defects or other reproductive harm.

Please check product label for warning information.

The sign must be no smaller than 8½ by 11 inches and

placed at each public entrance or point of display with

the notice in at least 28-point type. If by receipt, the

notice language must be printed or stamped on the

receipt in at least 12-point type.

Passenger Vehicles, Trucks, Vans and Off-Road Vehicles2

For passenger vehicles, pickup trucks, vans, and off-

road vehicles, the regulation requires two specific

methods of providing warnings: 1) in the manual and

2) on a label or hang tag.

In the manual, the warning must be in at least 12-point

font enclosed in a box printed or affixed to the inside

or outside of the front or back cover or on the first

page of text.

For the label, the warning must be provided on a

non-permanent label attached to the front window on

the driver’s side, or if there is no driver’s side window,

on a hang tag hung from the rear view mirror, or if

there is also no rear view mirror, in another prominent

location.

In both cases, the required warning language is:

WARNING: Operating, servicing and maintaining

a passenger vehicle or off-road vehicle can expose

you to chemicals including engine exhaust, carbon

monoxide, phthalates, and lead, which are known to

the State of California to cause cancer and birth defects

or other reproductive harm. To minimize exposure,

avoid breathing exhaust, do not idle the engine except

as necessary, service your vehicle in a well-ventilated

area and wear gloves or wash your hands frequently

when servicing your vehicle. For more information go to

www.P65Warnings.ca.gov/passenger-vehicle

2 There is a proposed but not yet effective amendment that would require

specific warnings for exposures from rental cars.


Non-Passenger Diesel Engine Exhaust

As with passenger vehicles, the new regulations

require non-passenger (i.e., not passenger vehicles,

pickup trucks or vans) diesel engine exhaust exposure

warnings to appear in two locations. Like the passenger

vehicle warning, one of these warnings must appear in

the manual, in at least 12-point font enclosed in a box

printed or affixed to the inside or outside of the front

or back cover or on the first page of text. The other

warning must appear on a label permanently attached

to the product in an easily visible location or in an on-

screen display where the operator is provided other

warnings and instructions. The safe harbor warning

language for both warnings is:

WARNING: Breathing diesel engine exhaust

exposes you to chemicals known to the State of


reproductive harm.

§ Always start and operate the engine in a well-

ventilated area.

§ If in an enclosed area, vent the exhaust to the

outside.

§ Do not modify or tamper with the exhaust system.

§ Do not idle the engine except as necessary.

For more information go to

www.P65Warnings.ca.gov/diesel

Recreational Vessels

For recreational vessels, the new regulations also require two methods of warnings. As with the passenger vehicles and diesel exhaust, one such warning must appear in 12-point font in a box printed or affixed to the inside or outside of the front or back cover or on the first page of text. The second warning must appear on a hang tag visible from the helm of the vessel printed in no smaller than 12-point type.

For both the warning language is:

WARNING: Operating, servicing and maintaining a recreational marine vessel can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, service your vessel in a well-ventilated area and wear gloves or wash your hands frequently when servicing this vessel. For more information go to www.P65Warnings.ca.gov/marine

Wood Dust

The regulations now require a warning for consumer product exposure to wood dust by drilling, sawing, sanding or machining raw wood products (“wood products” in defined in the regulations). The warning must be given in one, or both, of the following methods:

§ A warning displayed at point of sale of the raw wood product in a manner likely to be seen by the purchaser on a sign no smaller than 8½ by 11 inches and printed in at least 20-point type.

§ Where the product is sold in bulk form, the warning may be provided on the invoice or receipt in at least 12-point type.

The safe harbor warning language is:

WARNING: Drilling, sawing, sanding or machining wood products can expose you to wood dust, a substance known to the State of California to cause cancer. Avoid inhaling wood dust or use a dust mask or other safeguards for personal protection. For more information go to www.P65Warnings.ca.gov/wood


Proposition 65 requires the Office of Environmental

Health to minimize the burden on retail sellers to the

extent practicable. Thus, it is designed to send the

warning requirements as far up the distribution chain

as possible. However, the new regulations make it

possible for manufacturers and distributors to shift

that burden back down, onto retailers.

A retailer (with 10 or more employees) is responsible

for providing warnings when one of the following

exists:

1. The retailer (or affiliated entity) is selling the product

under a brand or trademark it owns or licenses;

2. The retailer has knowingly introduced a listed

chemical into the product, or knowingly caused it to

be created in the product;

3. The retailer has covered, obscured or altered a

warning label affixed to the product;

4. The retailer has received a notice and warning

materials from someone up the distribution

chain yet failed to conspicuously post or display

the warning;

5. The retailer has “actual knowledge” of the potential

consumer exposure and there is no source up the

distribution chain with ten or more employees and a

place of business, or an agent for service of process,

in California. (A retailer has “actual knowledge” if it

receives specific knowledge from a reliable source or

if it receives a sixty-day notice and continues to sell

the product five business days later.)

The fourth of these situations is of particular interest as

it demonstrates a shifting of the warning requirement

from the manufacturer to the retailer.

As seen above, a manufacturer or distributor can meet

its warning obligations by providing a warning on the

product label or labeling. Under the new regulations,

it can also meet its obligations “by providing a written

notice directly to the authorized agent for a retail

seller…” The written notice must (1) state that the

product may result in an exposure to one or more

of the listed chemicals; (2) include the exact name

or description of the product, or specific identifying

information, such as a UPC code or other identifying

designation; and (3) include all necessary warning

materials such as labels, labeling, shelf signs or

tags, and warning language for products sold on the

Internet. The manufacturer or distributor must also

receive written or electronic confirmation from the

retailer of receipt of the notice.

If the manufacturer, supplier or distributor properly

provides such notice, the retailer is then responsible for

the placement and maintenance of warning materials

—including for products sold over the internet. A failure

to do so would make the retailer liable (the fourth

situation above). Thus, once the manufacturer properly

provides notice, the duty to warn shifts to the retailer.

(A potential exception exists where the retailer has

less than 10 employees, since such a company is not

covered by Proposition 65.)3

Because providing notice can shift the obligation

downstream, the regulations impose a continuing

obligation on the manufacturer to both update and

renew these notices. If the warning is changed (e.g., a

new end-point or a new chemical), the manufacturer

must provide an additional notice within 90 days. But,

even if the warning is unchanged, the manufacturer

still must renew the warning to the retailer, with

confirmation of receipt, no later than February 28, 2019

and then annually thereafter.

Retailer Liability

3 As currently drafted, this only applies to notice to retailers. A presently

pending amendment would extend the ability of the manufacturer (or

others) to shift liability to intermediate companies in the same manner.


The general environmental exposure warnings are

similar to the consumer product warnings in that they

must now identify the specific carcinogen/toxin and

there are different warning requirements based upon

the chemical or toxin and the end-point.

The warning sign must clearly identify one or more

sources of exposure and contain the following warning:

For exposure to listed carcinogens:

WARNING: Entering this area can expose you to


cancer, including [name of one or more chemicals]

from [name one or more sources of exposure]. For


For exposure to a single carcinogen:


[name of chemical] from [name one or more sources of

exposure]. [Name of chemical] is known to the State of



For exposure to listed reproductive toxicants:



birth defects or other reproductive harm, including

[name of one or more chemicals] from [name one or

more sources of exposure]. For more information go to


For exposure to a single reproductive toxicant:


[name of chemical] from [name one or more sources

Environmental Exposure WarningsEnvironmental warnings are already ubiquitous in California. They can be seen on most buildings, in parking

garages, and in other locations. The new regulations further control these general warnings—strengthening how

the warning is conveyed, what it must state, and requiring a whole host of location-specific warnings which must

be used at certain businesses or locations.

of exposure]. [Name of chemical] is known to the




For exposure to both carcinogens and reproductive

toxicants:



cancer and birth defects or other reproductive harm,

including [name of one or more listed carcinogens and

name of one or more listed reproductive toxicants]

from [name one or more sources of exposure]. For


For exposure to a single chemical that is both a

carcinogen and a reproductive toxicant:


[named chemical] from [name one or more sources

of exposure]. [Name of chemical is known to the State

of California to cause cancer and birth defects or other



The new signage must be posted at all public entrances

to the affected area, in a conspicuous manner and in no

smaller than 72-point type.4

In addition the general environmental exposure

warnings, the new regulations contain numerous

“location-specific” warnings that must be provided.

General Environmental Exposure Warnings

4Warnings can still also be given via mailed/emailed/delivered notice to

occupants and/or publication in newspaper, but as posted signs are the

typical method of warning, they are discussed here.


Under the new regulations, certain types of business

and/or locations must provide specific warnings

rather than the general environmental warning. The

places covered are: amusement parks, dental offices,

designated smoking areas, enclosed parking facilities,

restaurants, service stations and vehicle repair facilities,

locations with exposure to petroleum products, hotels,

and residential rental properties.

For each of these warnings, the business must provide

the place-specific warning relevant to that business

as well as any other warning that is implicated. For

example, an amusement park must provide the

amusement park warning as well as the alcoholic

beverage warning (if it serves alcohol) and/or the

enclosed parking facility warning. Thus, for many

businesses, multiple warnings across products or

services lines are required.

Amusement Parks

The new regulations require that all amusement parks

(as defined in regulations) post a warning at each public

entrance in no smaller than 72-point type. The warning

for amusement parks is:

WARNING: Some areas or features in this

amusement park can expose you to chemicals

including [name of one or more chemicals], which

is [are] known to the State of California to cause cancer

or birth defects or other reproductive harm. For more

information, go to

www.P65Warnings.ca.gov/amusement-parks

Dental Offices

Dental offices now must post warnings regarding

exposure that occur during the delivery of dental

care including exposures from dental appliances. The

warnings must be posted on a notice or sign no smaller

than 5 by 5 inches and in no smaller than 20-point type

at all public points of entry. Alternatively the warning

can be provided in an informed consent form signed

by the patient prior to exposure. The new dental office

warning is:

WARNING: Certain dental procedures performed

in this office can expose you to chemicals known to the

State of California to cause cancer or birth defects or

other reproductive harm or both. Those procedures

can include sedation with nitrous oxide, root canals,

placement or removal of crowns, bridges, and

restorations such as mercury-containing fillings and use

of dental appliances. Consult your dental care provider

about these exposures and which materials are

appropriate for your treatment. Additional information

is also available at www.P65Warnings.ca.gov/dental

Designated Smoking Areas

Warnings now must be posted at the entrance to and

within any designated smoking area. The warning must

be posted on an 8½ by 11 inch sign, in at least 22-point

type, enclosed in a box. The designated warning

language is:

WARNING: Breathing the air in this smoking

area can expose you to chemicals including tobacco

smoke and nicotine, which are known to the State of


reproductive harm. Do not stay in this area longer

than necessary. For more information go to www.

P65Warnings.ca.gov/smoking-areas

Location-Specific Warnings


Enclosed Parking Facilities

For parking garages, the warning must be on a 20 by

20 inch sign with at least 72-point type posted at each

public entrance and state:

WARNING: Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/parking

Restaurants

Restaurants are required to warn of exposure from

any chemical in food or beverage sold or served for

immediate consumption. The regulations provide three

alternate ways in which a restaurant can warn (it only

needs to warn in one way):

1. An 8½ by 11 inch sign in no smaller than 28-point type, placed so that it is readable and conspicuous to customers as they enter each public entrance to the restaurant or facility where food or beverages may be consumed.

2. A notice or sign at least 5 by 5 inches with font at least 20-point and text enclosed in a box, placed at each point of sale so as to assure that it is readable and conspicuous.

3. A warning on any menu or list describing food or non-alcoholic beverage offerings, in a type size no smaller than the largest type size used for the names of general menu items.

The safe harbor language for the warning is:

WARNING: Certain foods and beverages sold

or served here can expose you to chemicals including

acrylamide in many fried or baked foods, and mercury

in fish, which are known to the State of California

to cause cancer and birth defects or other reproductive

harm. For more information go to www.P65Warnings.

ca.gov/restaurant

It is important to note that if the restaurant also serves

alcoholic beverages, the alcoholic beverage warning

must also be provided.


Service Stations and Vehicle Repair Facilities

For service stations, warnings must be placed on each

gas pump as well as at every public entrance to a repair

facility (if one exists). The gas pump warning must be

printed in at least 22-point type, enclosed in a box and

posted on each gas pump.

WARNING: Breathing the air in this area or skin

contact with petroleum products can expose you to

chemicals including benzene, motor vehicle exhaust

and carbon monoxide, which are known to the State

of California to cause cancer and birth defects or

other reproductive harm. Do not stay in this area

longer than necessary. For more information go to

www.P65Warnings.ca.gov/service-station

The repair facility warning must be at least 32-point

type, enclosed in a box and posted at each public

entrance. The content (which is identical to the service

station warning except for the URL) is as follows:

WARNING: Breathing the air in this area or skin

contact with petroleum products can expose you to

chemicals including benzene, motor vehicle exhaust

and carbon monoxide, which are known to the State

of California to cause cancer and birth defects or

other reproductive harm. Do not stay in this area

longer than necessary. For more information go to

www.P65Warnings.ca.gov/vehicle-repair

Petroleum-Based Environmental Exposure

The warning requirements for possible environmental

exposure to petroleum products expands beyond

service stations and vehicle repair facilities. There

is a separate warning that must be provided for

environmental exposure to petroleum products in

locations other than service stations and vehicle repair

facilities—locations such as in and around refineries,

chemical plants, oil fields, and petroleum storage and

delivery areas, etc.

In these situations the safe harbor language is:

WARNING: Crude oil, gasoline, diesel fuel

and other petroleum products can expose you to

chemicals including toluene and benzene, which

are known to the State of California to cause cancer

and birth defects or other reproductive harm.

These exposures can occur in and around oil fields,

refineries, chemical plants, transport and storage

operations such as pipelines, marine terminals, tank

trucks and other facilities and equipment. For more

information go to

www.P65Warnings.ca.gov/petroleum

This warning should be provided in the same manner

the general environmental warning is provided—i.e.,

generally by posting a warning sign posted at all public

entrances in at least 72-point type.


Hotels

The new regulations also include specific warning

language for “hotels.” The term “hotel” is broadly

defined and encompasses a variety of properties such

as hotels, timeshares, vacation home rentals, bed and

breakfasts, and others. The hotel warning must be

provided by either (or both) of the following methods:

1) on a sign posted at the registration desk in no

smaller than 22-point type in a location likely to be seen

prior to completion of the registration; or 2) provided

electronically or in hard copy prior to or during the

registration/check-in process. As with a number of the

other categories provided above, the required warning

language varies based upon the number of end-points.


WARNING: [Name of one or more exposure

source(s)] in this establishment can expose you to

chemicals including [name of one or more chemicals]

which is [are] known to the State of California to cause

cancer. For additional information go to

www.P65Warnings.ca.gov/hotels




[name of chemical] which is known to the State of

California to cause cancer. For additional information

go to www.P65Warnings.ca.gov/hotels




[name of chemical] which is known to the State

of California to cause birth defects or other

reproductive harm. For additional information go

to www.P65Warnings.ca.gov/hotels

For exposure to both listed carcinogens and

reproductive toxicants:





cancer and [name of one or more chemicals] which

is [are] known to the State of California to cause birth

defects or other reproductive harm. For additional

information go to www.P65Warnings.ca.gov/hotels

For exposure to a chemical that is listed as both a



sources(s)] in this establishment can expose you to

[name of one or more chemicals] which is [are] known

to the State of California to cause cancer and birth

defects or other reproductive harm. For additional

information go to www.P65Warnings.ca.gov/hotels


Residential Rental Properties

A further amendment to the regulations have also

added specific warning language for “residential rental

properties.” This amendment becomes effective July

1, 2019. Residential rental properties include “an

apartment, house, duplex, triplex, condominium or

other dwelling that a landlord rents to a tenant to live

in, including common areas.” This does not include

“hotels” as defined in the previous section.

For such properties, the landlord must proactively

reach out to each known adult occupant, at the outset

and then on a yearly basis thereafter, and provide the

warning in hard copy, electronic form or in the lease/

rental agreement. Further, where the rental agreement

is in multiple languages, the Proposition 65 warning

must also be provided in those languages. Like the

other warnings, the required warning language varies

based upon the number of end-points.



sources(s)] on this property can expose you to



cancer. Talk to your landlord or the building owner

about how and when you could be exposed to these

chemicals in your building. For additional information

go to www.P65Warnings.ca.gov/apartments



source(s)] on this property can expose you to

[name of chemical] which is known to the State of

California to cause cancer. Talk to your landlord or

the building owner about how and when you could

be exposed to this chemical in your building. For

additional information go to www.P65Warnings.ca.gov/

apartments



sources(s)] on this property can expose you to [name

of chemical] which is known to the State of California

to cause birth defects or other reproductive harm. Talk

to your landlord or the building owner about how and

when you could be exposed to this chemical in your

building. For additional information go to

www.P65Warnings.ca.gov/apartments

For exposure to both listed carcinogens and

reproductive toxicants:





cancer and [name of one or more chemicals] which

is [are] known to the State of California to cause birth

defects or other reproductive harm. Talk to your

landlord or the building owner about how and when

you could be exposed to these chemicals in your

building. For additional information go to


For exposure to a chemical that is listed as both a






cancer and birth defects or other reproductive harm.

Talk to your landlord or the building owner about how

and when you could be exposed to this chemical in

your building. For additional information go to



Non-English Language Warnings There is no per se requirement that Proposition 65

warnings be provided in a language other than English.

But, under the new regulations, non-English warnings

may be required under certain circumstances. Broadly

speaking, if the company provides other pertinent

information in languages other than English, the

Proposition 65 warning must similarly be provided in

those other languages. So, if the company provides

labels, instructions, signage, product manuals, etc.

in Spanish, French, German, Chinese or any other

language, the Proposition 65 warning must also

be provided in English and those other languages

However, if the only information provided in the other

language is the company name or the product name, a

non-English warning is not required.

Conclusion

The changes to Proposition 65 modify almost every

section of the regulations—altering what warnings

need to be provided, the content of those warnings

and even how and when the warnings need to be

provided. These changes will have an enormous

impact on almost every company that sells a product

in, manufactures or distributes a product sold in

California, owns or manages a public space, or employs

persons in that state. Every company should review

and update their current warnings to comply with the

modifications of the regulations. Companies should

also review their products and/or locations and

determine if new warnings are required (as a result

of the new product/location-specific requirement)

and the new method in which such warnings must be

provided. Given the technical nature of these updates,

the assistance of attorneys experienced in Proposition

65 litigation is advisable.


If you have any questions or need assistance with any Proposition 65 matter, please contact Michael Sachs:

Or any other member of Clark Hill’s Proposition 65 team, including:

Michael Sachs

415.984.8530

[email protected]

Barbara Adams

415.984.8544

[email protected]

Steven Hoch

213.417.5158

[email protected]

Georges Haddad

415.984.8506

[email protected]

Kenneth von Schaumburg

202.772.0904

[email protected]

Christopher Foster

213.417.5130

[email protected]


About Clark Hill

Clark Hill is a multidisciplinary, national, law firm with more than 600 attorneys and professionals based in 25 offices across the United States, Dublin and Mexico City. Our attorneys are experienced in Proposition 65 litigation and have represented numerous industries and product lines. We are experienced in assisting companies in: 1) analyzing product lines for possible Proposition 65 concerns; 2) implementing labeling and warning policies; 3) responding to 60-day notice letters; 4) representing clients in pre-litigation matters; and 5) representing clients in active litigation.

The foregoing publication is intended solely for the education and information of the recipient. It is not intended to be

legal advice or a legal opinion and should not be regarded as either legal advice or a legal opinion.

This material may be deemed attorney advertising.


clarkhill.com

new proposition 65 warning regulations - clark hill plc · § old safe harbor warning language must...

Documents