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.
2. Language of Signs.
The following language is appropriate and legally sufficient:
"WARNING: This facility allows smoking in some areas. Tobacco
smoke, and many of the chemicals in it, are known to the state of California to
cause cancer, and birth defects or other reproductive harm. [Optional: Smoking is
permitted only in the following areas of this facility: (identify areas, e.g.,
"swimming pool area," "foyers," "designated guest rooms," "outdoor patios."]"
3. Successful parties. The plaintiff is
not successful and has not conferred a substantial public benefit if the defendant
had posted signs substantially complying with subparagraphs (1) and (2); and the
only additional relief obtained is the posting of additional signs in guest rooms or
in hallways that lead to guest rooms in which smoking is permitted.
(d) Environmental Exposure Warnings. In
determining whether environmental exposure warnings comply with the law, the parties
should consider 22 CCR section 12601(d)(2), which requires, among other things, that
the warning "be provided in a conspicuous manner and under such conditions as to
make it likely to be read, seen or heard and understood by an ordinary individual in
the course of normal daily activity, and reasonably associated with the location and
source of the exposure." 22 CCR section 12601(d)(1) also requires that such warnings
"target the affected area." Settlements meeting these requirements should:
(1) include a warning other than signs posted at
the facility wherever the area for which the exposure occurs at a level requiring a
warning extends beyond the boundaries of the facility to an area of persons who do
not actually enter or walk by the facility.
(2) Use hand-delivered or mail-delivered notices
rather than media advertisements unless the area of persons to be warned is so large
as to make such delivery substantially more expensive than media
advertisements;
(3) If newspaper notices
are used, they should appear in the main news section of the newspaper with the
largest circulation in the area for which a warning is given, be at least 1/4 page
in size, and contain a graphic depiction of the location of the facility for which
the warning is given and the area for which the warning is given.
