Business Beware: Environmental and Occupational Warnings Under Prop 65

After 34 years California’s Proposition 65 continues to serve as a ripe source of litigation against businesses which fail to warn that their products can expose consumers to chemicals that cause cancer or reproductive toxicity. There is plenty of press coverage of this aspect of Proposition 65, including a recent article in the Los Angeles Times.

Indeed, many businesses are long familiar with the warning signs or labels we see all around us, telling us that this or that product may contain a chemical known to the State of California to cause cancer or reproductive toxicity (a “regulated chemical”). These signs must be posted or otherwise provided pursuant to Proposition 65. SeeHealth and Safety Code Section 25249.5 et seq.:

“No person in the course of doing business [meaning an employer with10 or more employees; Health and Safety Code Section 25249.11] shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual [with limited exceptions].”  

The provision of the warning signs or labels is generally enough to satisfy Proposition 65 where (1) consumer exposure to regulated chemicals in a product is concerned and (2) where the language of the warnings complies with the rules governing regulated chemicals in products set forth in Title 27 of the California Code of Regulations (“CCR”).

However, many businesses lack awareness that other types of exposure liability will not necessarily be satisfied by providing a warning addressing consumer exposure. This discussion addresses environmental exposure and occupational exposure, that is exposures occurring in a neighborhood or an office setting where neighbors, visitors or employees are subject to chemical exposure that is regulated by the Proposition.

There are several guideposts that businesses employing 10 or more people can follow to avoid liability for these less-publicized avenues of Proposition 65 liability exposure.

First, as to the environmental exposure warning, the warning may be provided by posting signs at building entrances or specific areas where exposure may occur, by personal delivery or by electronic media or newspaper publication to the neighborhood, depending on the circumstances. The form of warning must include a warning symbol (the now familiar yellow triangle outlined in black with a central black exclamation point) and the word “WARNING”. The warning must also include the specific name of at least one chemical which is the subject of the warning and the type of illness that chemical is known to cause (cancer or reproductive toxicity).

Thus, in the case of an office exposure to a regulated chemical known to the State to cause cancer, the warning sign about environmental exposure should read:

“Entering this area can expose you to chemicals known to the State of California to cause cancer, including [name of one or more chemicals], from [name of one or more sources of exposure, e.g., inhalation]. For more information go to www.P65Warnings.ca.gov.”

In the case of a neighborhood exposure, the warning should read: “WARNING: This area contains a chemical known to the State of California to cause cancer.” 

Variations on these approved warnings exist, depending on whether only a single chemical is involved and depending on whether the chemical(s) at issue can cause only cancer or also reproductive toxicity. The warning must be in no smaller than 72-point type.

It should be noted that the regulations also contain requirements regarding the wording of warnings and their methods of transmission, specifically tailored to various substances. These regulations have priority over the general regulations discussed above. The regulations specify warning requirements as to, among other things, food, alcohol, nonalcoholic beverages, restaurants, furniture, diesel engines, recreational vehicles, enclosed parking facilities, amusement parks and designated smoking areas. Unless the regulated chemical at issue falls in one of these categories, the general warning requirements discussed above apply.

As to the second avenue of liability, occupational exposure, this is primarily associated to employees’ exposure in the workplace.

If regulated chemicals are present in the workplace, the warning can be placed on products present or used in the workplace or on signage in the workplace.  The regulations provide acceptable language for the warning, both for chemicals that are carcinogens and for reproductive toxicants. If the labels are placed on the products themselves, the typical consumer warning on the products should be sufficient; if the warnings are instead provided by signage, the signs must be placed in a conspicuous space likely to be read and understood.

In all events regarding occupational exposure, the regulated business must comply with the Hazard Communication Standard insofar as employees are concerned, which provides among other things:

“Employers shall develop, implement, and maintain at the workplace a written hazard communication program for their employees which at least describes how the criteria specified in sections 5194(f), (g), and (h) for labels and other forms of warning, safety data sheets, and employee information and training will be met, and which also includes the following:….”

Compliance includes, but is not limited to, having a central place where employees can access Safety Data Sheets for the items in the workplace which are regulated by Prop 65. Since there are so many technical requirements listed in 8 CCR Section 5194, the most efficient way to ensure compliance would be to have a qualified consultant, whether in house or third party, prepare the compliance program.

As a result of extensive publicity, the business community appears to be well aware of the liability hazard cause by failure to warn consumers about products containing chemicals that can cause and/or reproductive toxicity. The penalties for violation of the environmental warning and occupational warning rules exist (among other things, $2,500/day), even if less well-noticed; to protect itself, the community needs to be equally aware of these rules.

Stephen T. Holzer is a Shareholder in our Environmental Practice Group.