Proposition 65: Sign Of The Times—For Employers, What’s New Is Old

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Seyfarth Synopsis: As of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.

California’s ubiquitous Proposition 65 warnings, which warn the public at large of the presence of known cancer-causing chemicals, are receiving a makeover. Beginning August 30, 2018, regulations enacted by the Office of Environmental Health Hazard Assessment will require businesses to provide “clear and reasonable” warnings regarding Prop 65 listed chemicals. For businesses in general, this new requirement typically will mean displaying signs advising the public of known carcinogens on site. (Technically, California does not require the use of these signs, but they provide a safe harbor for businesses because they are deemed compliant with Proposition 65; it is more risky to rely on a homegrown Prop 65 sign.)

The new signs will display the name of at least one chemical that prompted the warning; convey more directly the risk of exposure for consumer products (e.g., saying the product “can expose you to” a listed chemical, rather than that the product “contains” a chemical); and refer to a website that will provide additional, relevant information.

For employers, however, not much will change. Employers already must warn employees of hazardous exposures, as defined by Cal/OSHA standards, occurring at the workplace. Most employers satisfy that duty by implementing a hazardous communication program that complies with Cal/OSHA standards. Employers may continue to do so under the revised Prop 65 regulations. In that sense, a compliant HazCom program (which already requires information about present hazards, employee training, and the availability of safety data sheets) will continue to provide a safe harbor to employers.

Some occupational exposures to listed chemicals do not trigger HazCom threshold requirements but nonetheless are covered by Prop 65. In those cases, Cal/OSHA still permits employers to use their HazCom program to comply. Employers may choose instead to use the new Prop 65 warning signs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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