Cal. Code Regs. tit. 11 § 3202

Current through Register 2024 Notice Reg. No. 17, April 26, 2024

Section 3202 - Clear and Reasonable Warnings

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.

Cal. Code Regs. Tit. 11, § 3202

1. New section filed 1-17-2003; operative 1-17-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Change without regulatory effect amending first paragraph filed 12-6-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 50).

Note: Authority cited: Sections 25249.7(f)(4) and 25249.7(f)(5), Health and Safety Code. Reference: Sections 25249.7(f)(4) and 25249.7(f)(5), Health and Safety Code.