California Proposition 65 Safe Harbor Warning Regulations Update

Mon September 21, 2020

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From the offices of Bruce Nye

Summary Update Prop 65

More than two years ago, the Proposition 65 Lead Agency, The Office of Environmental Health Hazard Assessment (“OEHHA”) issued regulations changing what warnings would be “deemed clear and reasonable” and therefore in compliance with the Proposition 65 warning requirements. On their face the regulations were not the only means of complying with the warning requirement.  But based on the regulations, and on at least one previous appellate court decision, a company’s exact compliance with the regulations means that neither a private party enforcer nor the Attorney General could successfully contend that the warnings given were not clear and reasonable.

The major additions to the regulations took effect on August 30, 2018.  Soon before that, we circulated a memorandum summarizing the new regulations to many of our firm’s friends and clients. Since then, there have been a variety of changes and additions to the regulations.  The actual text of the proposed “safe harbor warnings” has not been changed.  But there are a few changes concerning the manner the warning can be conveyed for some of the product specific warnings, and ways in which the obligation to warn can be transferred by the manufacturer, importer or distributor to some downstream companies. Furthermore, in recent months, OEHHA has proposed a few changes concerning the product specific warnings applicable to the sale of alcoholic beverages, and it seems probable that these will be effective by the end of this year.

So we have prepared an up-to-date summary memorandum describing all of the safe harbor warning regulations presently in effect, and assuming effectiveness of the few upcoming ones.  That memo is attached for anyone in your company involved in Proposition 65 compliance to review. For the clients on this list: (a) as always, please let us know if you are in need of any assistance with respect to compliance.  (b) while we hope you will not receive further Notices of Violation, if you do, please let us know if we can be of assistance with one.

Summary Update Prop 65

Bruce Nye, Attorney of Counsel
Scali Rasmussen | Ahead of the Curve
1901 Harrison Street, 14th Floor
Oakland, CA 94612
Tel: 510.248.4775