California Code of Regulations › Title 11 - Law › Division 4 - Proposition 65 Private Enforcement › Chapter 3 - Settlement Guidelines › Section 3202 - Clear and Reasonable Warnings

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
Health and Safety Code section
				  25249.7(f)(4)(A)
				  requires that, in order to approve a settlement, the court must find that "Any
				  warning that is required by the settlement complies with" the clear and reasonable
				  warning requirement of Proposition 65. This guideline provides additional
				  information concerning the Attorney General's interpretation of the statute and
				  existing regulations governing clear and reasonable warnings and factors that will
				  be considered in the Attorney General's review of settlements. Nothing in this
				  guideline shall be construed to authorize any warning that does not comply with the
				  statute and regulations, or to preclude any warning that complies with the statute
				  and regulations or to conflict with regulations adopted by the Office of
				  Environmental Health Hazard Assessment. This guideline is intended to address some
				  of the types of warnings commonly found in settlements, not to provide comprehensive
				  standards.
(a) Supporting evidence. In
				order to sustain its burden of producing evidence sufficient to support the
				conclusion that the warning is legal, the plaintiff should provide (1) the text and
				appearance of the warning, along with a sufficient description of where the warning
				will appear in order to ascertain whether the warning will be "reasonably
				conspicuous" under the circumstances of purchase or use of the product; and (2)
				sufficient proof that the product causes exposure to a listed chemical to enable a
				finding that the warning would be truthful.
(b) Warning language. Where the settling parties
				agree to language other than the "safe harbor" language set forth in the governing
				regulations (22 CCR §
										12601(b)) the warning language
				should be analyzed to determine whether it is clear and reasonable. Certain phrases
				or statements in warnings are not clear and reasonable, such as (1) use of the
				adverb "may" to modify whether the chemical causes cancer or reproductive toxicity
				(as distinguished from use of "may" to modify whether the product itself causes
				cancer or reproductive toxicity); (2) additional words or phrases that contradict or
				obfuscate otherwise acceptable warning language. Certain other deviations from the
				safe-harbor warnings are generally clear and reasonable, such as (1) Using the
				language "Using this product will expose you to a chemical . . ." in lieu of "This
				product contains a chemical . . ."; or (2) deleting the reference to "the state of
				California" from the safe-harbor language.
(c) Premises warnings for environmental tobacco
				smoke. A number of cases involve provision of warnings due to exposure to
				environmental tobacco smoke caused by entry of persons (other than employees) on
				premises where smoking is permitted at any location on the premises.
1. Location of signs.
(A) For hotels or apartment buildings in which
				entry to guest rooms or apartments is on an enclosed hallway and there is a common
				ventilation system, the sign should be posted at main and subsidiary entrances to
				the building (including any entrance from a parking structure), and at the
				registration counter or administrative office open to the public or
				guests.
(B) For hotels or apartment
				complexes in which entry to guest rooms or apartments is to areas open to ambient
				air; signs should be posted at a kiosk or gate where cars drive in, if any, and at
				the registration counter or other administrative office open to the public or
				guests.