California Adopts Amendments To Prop 65 "Safe Harbor" Warning Requirements

In September, California's Office of Environmental Health Hazard Assessment ("OEHHA") announced that it had adopted amendments to the regulations governing California's Proposition 65, which requires that businesses provide a "clear and reasonable warning" before exposing an individual to any chemicals that California has determined cause cancer or reproductive harm. Although a business can create its own warning and hope that a court will conclude it is "clear and reasonable," OEHHA has promulgated a series of regulations establishing a so-called "safe harbor" — warnings that are considered per se clear and reasonable. So, although OEHHA dubs the safe harbor warnings as "non-mandatory guidance," for any company not willing to bear the risk of creating its own warning, the "safe harbor" regulations are de facto requirements.