The original Act, the subsequent legislative, bureaucratic, court and State Attorney General interpretations, additions and changes along with the OEHHA now use two distinct terms of art with respect to the term ‘Safe Harbor’.
The first refers to the generic warnings permitted under the law prior to August 30, 2018. Some examples were:
- WARNING: This product contains a chemical known to the State of California to cause cancer.
- WARNING: This product this product contains a chemical known to the State of California to cause birth Defects or other reproductive harm.
Under the previous law having these generic warnings at any size and any place on a package or product created a ‘safe harbor’ from a lawsuit. The new is far more strict and prescriptive requiring that these warnings may only be used on individual products themselves and then only when other forms of the Warnings are transmitted to California Consumers. They are also subject to the 6-point minimum font size requirements and that the safe harbor warning be no smaller than the largest font used on the packaging.
The second use of the term safe harbor refers to No Significant Risk Levels (NSRLs) for cancer-causing chemicals or Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity. Products containing chemical amounts below these thresholds do not require warning labels thus creating the ‘safe harbor’ from a lawsuit. The OEHHA has determined safe harbor levels for 300 or so chemicals of the 900+ currently on their list. Others like lead have no permissible levels and the rest have not been either researched or agreed upon by the various agencies and experts.
From a testing perspective it is important to note that a safe harbor level is a daily exposure limit expressed in micrograms per day (µg/day). It is completely different from total chemical content of a product usually expressed as micrograms per kilogram (mg/Kg) and there is no way to directly convert one figure into the other as they are different conceptual measurements.
For many companies the costs and types of testing required to determine if a particular product poses an exposure level of a chemical to the consumer below the safe harbor is simply not worth it vs. just adding a warning.