Content:

The new regulations allow and describe the content required for two types of safe harbor warnings:  the long-form and short-form.1  The content required for either form is composed of four parts, in this order: a) the familiar exclamation-point-within-the-triangle symbol; b) the word, “warning” in bold and all caps; c) certain specified text; and d) a URL.  The difference in content between long-form and short-form is the specified text.  In the long-form, the text must identify at least one chemical (among hundreds listed) and the known harm (either cancer or reproductive harm), whereas the short-form only requires the harm to be identified.  In addition, the long-form text is less definite than the short-form text.  For example, below are the two forms of “safe harbor” warnings for the chemical Di (2-ethylhexyl)phthalate (DEHP), a commonly used plasticizer, which is listed as both a carcinogen and a reproductive toxicant under California law:

 WARNING:  This product can expose you to chemicals including DEHP which is known to the State of California to cause cancer and birth defects or other reproductive harm.  For more information go to www.P65Warnings.ca.gov 

 WARNING:  Cancer and Reproductive Harm – www.P65Warnings.ca.gov

Although the short form is more convenient because it is less onerous in length and specificity, the trade-off for businesses is that it directly informs the consumer that using the product will cause the specified harm.  In addition, and as further explained below, the short-form may only be used on the product’s “label.”

Methods of Transmission

A business meets the “methods of transmission” requirements under the new regulations by transmitting such warnings in one of the following three ways:2

  1. Point-of-display warnings:  a business may post signs at each point of display to provide a product-specific warning.
  2. Electronic device warnings:  a business may use an electronic device or process that automatically provides a product-specific warning prior to or during the purchase.
  3. Product label warnings:  a business may place the warning on the product’s “label,” which generally means the product itself or its “container or wrapper.”3

Notably, the content required by the long-form must be used for either of the first two methods of transmission.  The product label warnings, however, allow a business to use either the long-form or the short-form content to qualify as permissible safe-harbor warnings.

Internet and Catalog Sales

The new regulations, unlike the old regulations, also address the method for warning consumers in internet and catalog purchases.4  For catalog purchases, a business must provide a permissible warning (the long-form or short-form) in the catalog and in a manner that clearly associates the warning with the item being purchased.  For internet purchases, a business must provide permissible product-specific warnings (the long-form or short-form) on its website to the purchaser prior to completing the purchase.  But note the short-form warning for either catalog or internet warnings may only be used if the short-form warning is already provided on the product’s label.  If not, the catalog and internet warnings must be in the long-form.5

Conclusion

Time is up!  The content and methods for safe harbor warnings have changed, and there is no longer any transition period to bring your business into compliance.  It is especially important that businesses follow the safe harbor warning requirements for internet purchases because not only do your customers enjoy shopping online, but “bounty hunters” undoubtedly prefer shopping online for potential lawsuits against your company, too.  Protect your business from these lawsuits by complying with the new regulations immediately.