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By Labor & Employment

In a recent decision, the Court of Appeals for the Second Appellate District upheld a $150,000 sexual harassment verdict and a $680,000 attorneys’ fee award against one of the Countries’ largest rigging and drilling company, Nabors.  Given the nature of the allegations and the size of the award against the drilling tycoon, expect to see more of these types of cases in the near future.

Max Taylor, the Plaintiff in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal. App. 4th 1228, began his employment as a “floor hand” on a drilling rig for Nabors in 2008. Starting at an entry-level position, Taylor was subject to daily verbal abuse by his supervisor and by senior employees. Several times a day they called him, among other things, “queer,” “fagot,” and “homo,” and posted pictures of him around the restroom with derogatory sexual comments. Taylor’s supervisor and coworkers knew that Taylor was not a homosexual, knew that Taylor had a girlfriend, and their spouses’ and Taylor’s girlfriend would even go shopping together. In addition to verbally abusing Taylor, his coworkers would also physically assault him by, among other things, spanking his buttocks. According to Taylor’s girlfriend, Taylor would come home after work emotionally distressed.

Approximately one-and-a-half-years after his employment with Nabors began, Taylor complained to human resources about the harassment. In response, Nabors removed Taylor’s supervisor from Taylor’s rig and the other employees stopped harassing him. After a thorough investigation Nabors terminated the supervisor. Three months later, however, Nabors terminated Taylor citing workplace absences, tardiness, and a confrontation with one of his new supervisors. Three months later, Taylor filed suit alleging hostile work environment, failure to prevent sexual harassment, unlawful retaliation, and wrongful termination. A jury awarded him $160,000 in damages based on his hostile work environment claim alone.

On appeal, the court upheld the jury award noting that “sex was used a as a weapon to create a hostile work environment” for Taylor. The court further noted that Taylor’s seniors “’employed attacks on (Taylor’s) identity as a heterosexual male as a tool of harassment.’” Nabors argued that the rig crew’s comments were not sexually motivated as they all knew Taylor was not a homosexual. In response, the court cited the newly amended Labor Code section 12940(j)(4)(C), which became operative on January 1, 2014, and which specifically provides that “sexual harassing conduct need not be motivated by sexual desire.” As such, the court held that “a heterosexual male is subjected to harassment because of sex under the FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.” The court upheld $150,000 of the $160,000 award for non-economic damages to Taylor as well as the entire $680,520 attorney fees award.

While the facts of this case may seem shocking to some, to others who work in the oil fields this might seem like routine hazing. Therein lays the problem. In an industry where new employees are commonly known as “worms,” the historic hazing rituals in these small crews working at remote locations is difficult to break. Given the amount of damages awarded, and given that this is the first case to discuss the newly-revised Labor Code section 12940(j)(4)(C), we expect to see an increase in sexual harassment cases filed against companies performing oil field services such as drilling, cementing, fracking, and treatment where small crews are the norm. Such companies would be well advised to not only ensure that they are promoting trustworthy mature individuals to such crews, but regularly training them in sexual harassment, and mandating that every crew’s binder includes, at the very least, examples of what types of conduct is not permissible.

It is a truism that preliminary injunctions are “rare” and “exceptional” remedies.  But rarity is context specific.  As a percentage of cars made, Cobra GTs are rare.  If you are standing in the plant where they are made, however, they are anything but rare.  So, while it may well be true that preliminary injunctions, as a percentage of all cases filed are “rarely granted,” that does not mean that most preliminary injunctions are denied.   Although I have no numbers, my experience is that most preliminary injunctions that are brought before a court are likely granted.  That is because attorneys who prepare such applications go through a fairly rigorous self-selection.

Attorneys do not like to lose and they rarely try to bring a preliminary injunction if they don’t think they can satisfy a court that the facts necessitate its issuance.  The same is true of temporary restraining orders which, after all, are only a short term preliminary injunction which can be acquired on shortened (and sometimes no) notice.  When an attorney runs into court with a stack of papers screaming that his client’s hair is on fire and that the defendant is lighting the matches, most judges will, just out of caution and prudence, be inclined to order the defendant to stop playing with matches.  This is especially so in trade secret misappropriation and unfair competition cases.  A plaintiff company runs into court essentially asserting that it will be destroyed or irreparably injured unless the court issues an injunction.  It claims that its customer lists or information associated with customer lists known by former employees is being used to destroy or injure it.  On those facts, many judges will issue a preliminary injunction.  The truth in trade secret and business unfair competition cases is that preliminary injunctions are common.

It may also be less of a big deal than everybody thinks.  Such orders will typically say something like: “don’t use your former employer’s trade secrets.”  Orders in excess of that injunction, or that prohibit contact with particular customers, may be subject to a writ of supersedeas or expedited appellate court review.  While some trade secret and unfair competition cases settle after the preliminary injunction issues, increasingly we see cases where the preliminary injunction is put into place will proceed to trial or disposition by later motion.  On motions for preliminary injunction or application for TRO, the defendant has all the disadvantages.  Plaintiff has had substantial time (or at least more time than defendant) to develop evidence, prepare declarations, obtain computer forensics and the like in advance of filing the motion.  Defendant is on, well, the defense and must hurriedly prepare declarations, computer forensics.  This rush often puts defendants at an extreme disadvantage.

Cautionary note:  Many defendants will rush to prepare declarations which commits them to statements that they may later regret.  Very few individuals remember with any accuracy the content of email communications, or what stored documents or computer forensics will actually show when they are examined.  It is all too common an experience that a party will assert that they have never had any contact with X, Y or Z only to find several emails contradicting that assertion in later discovery.  Counsel must take great care not to let defendants overcommit factually in declarations filed in response to a preliminary injunction in advance of electronic communications and documents being collected and reviewed.

One of the key pieces of evidence a plaintiff in a trade secret case usually looks for is the downloading of company information from its computers prior to a former employee departing and joining a competitor.  Generally, this “smoking gun” type of evidence shows that the employee on his or her last day accesses and downloads a bunch of proprietary company information that is then used at his or her new place of business to compete with the former employer.  This key evidence can be used to support an application for a TRO/preliminary injunction early in the case to give the employer a litigation advantage.  However, merely finding evidence of the downloading may not be sufficient to establish trade secret misappropriation should the case go forward.  This was one of the issues that faced the Court in in Integral Development Corp. v Tolat, a recent decision rendered by the U.S. District Court for the Northern District of California.

Dr. Viral Tolat was one of the co-founders of Integral, a software development company and service provider in the area of online trading on foreign exchange markets.  From 1993 to December 2012, Dr. Tolat served as Integral’s Chief Technology Officer and Head of Integral Products and Services.  In December 2012, Dr. Tolat left Integral and joined one of its competitors.

Integral sued Dr. Tolat for trade secret misappropriation, among other claims.  Dr. Tolat moved for summary judgment and the Court granted it as to Integral’s trade secret misappropriation claim against him.

In addition to finding that Integral failed to identify the information it claimed to be trade secret with sufficient particularity, as well as a failure to establish damages, the Court concluded that Integral had not established that Dr. Tolat had misappropriated its alleged trade secrets.  Integral offered evidence that Dr. Tolat had downloaded a copy of Integral’s source code while still employed there and while he was engaging in negotiations to join the competitor.  Integral also argued that there was the short period of time for the competitor to bring its product to market, which showed that Dr. Tolat must have misappropriated Integral’s trade secrets.  The Court found that this “evidence” was insufficient to show that Dr. Tolat misappropriated the information, i.e., used the information he downloaded improperly.

Dr. Tolat was able to offer evidence that he deleted the information he downloaded prior to beginning his work at the competitor.  Further, there was no evidence that he had accessed or used the information after leaving Integral.

The Integral decision reminds plaintiff employers that their burden of establishing trade secret misappropriation is not met simply by showing that a former employee has downloaded or copied company information.  Rather, to prevail on a claim of trade secret misappropriation, the plaintiff employer must obtain evidence that the former employee has in fact used that information for improper purposes.  Otherwise, a plaintiff employer is at risk of losing its trade secret misappropriation claim.

On July 13, 2013, in an unpublished decision, the Second Court of Appeal reversed a lower court’s decision to dismiss a sexual harassment case on the grounds that plaintiff had not adequately pleaded a “hostile environment” theory.  For those interested in understanding what employers should not do in response to a harassment or discrimination complaint, the case is well worth reading.  Like a parable, this case offers a lesson:  Employers should respond to all complaints about harassment in the workplace.  A failure to act will usually create employer liability.

In Elster v. Fishman, a legal secretary complained that in the course of her work she was required to read her assigned attorney’s emails.  Some of those emails were “sexually explicit and pornographic.” The employee complained but the employer took no action in response to those complaints.  The employee went out due to stress and ultimately sued.  The law firm repeatedly challenged the adequacy of the former employee’s complaint for sexual harassment under the Fair Employment and Housing Act.  Essentially, it asked the Court to judge the adequacy of those pleadings as a matter of law.  The primary issue as to plaintiff’s FEHA case is whether the plaintiff alleged facts sufficient to establish “a pattern of continuous, pervasive harassment.”   The Court of Appeal concluded she had, reversing the trial court.

The case is also interesting because it illustrates that employer action in response to sexual harassment complaints should almost never include a transfer of the complainant.  Click on the link here for a full copy of the Elster v. Fishman.

Over the last 15 years, the United States Patent and Trademark Office has issued many business method patents.  Many of these patents seem overly broad or obvious, and the tech industry has been strongly critical of the PTO for issuing these patents.

Congress has been listening.  Under a new program enacted as part of the America Invents Act (“AIA”), business method patents can be challenged in a specific procedure in the PTO.  The program, called the “Transitional Program for Covered Business Method Patents” and referred to as CBM Review, is set forth in section 18 of the AIA.  CBM Review went into effect in September 2012 and has a sunset provision of September 2020.

Under the CBM Review program, a defendant accused of infringement of a patent covering a business method may challenge the validity of the patent in the PTO.  CBM Review is conducted before a new administrative law board, the Patent Trial and Appeal Board (“PTAB”).     Section 18 (d)(i) of the AIA defines a covered business method to be a method or apparatus directed to data processing or other activities used in financial products or services.  The statute excludes patents covering “technological inventions,” which the PTO has defined as inventions that solve a technical problem using a technical solution.

The purpose of CBM Review is to provide a quick and less costly alternative to federal court litigation for determining the validity of business methods patents.  Under the CBM Review program, a patent may be challenged as invalid on any number of grounds, including that the claims are directed to unpatentable subject matter under 35 U.S.C. section 101, in particular, abstract ideas.  Business method patents can also be challenged on the basis or prior art. 

In adopting the CBM Review program, one of the sponsors of the law stated:

“Litigation over invalid patents places a substantial burden on U.S. courts and the U.S. economy.  Business-method inventions generally are not and have not been patentable in countries other than the United States.  In order to reduce the burden placed on courts and the economy by this back-and-forth shift in judicial precedent, the transitional proceeding authorizes a temporary administrative alternative for reviewing business method patents.”

Unlike other previous methods for challenging patents in the PTO, CBM Review is intended to be quick.  The process begins when a petition is filed in the PTO by a party threatened with or sued for patent infringement.  The petition must show that the patent falls within the definition of covered business methods and that at least one claim in the patent is “more likely than not” unpatentable.  The patent owner has three months in which it may file a response.  Within six months of the filing of the petition, a panel of three patent administrative law judges of the PTAB decides whether to grant the petition for review.  If the petition is granted, CBM Review is instituted.  The process, called a trial, is adversarial and involves both the patent owner and the challenger, and includes discovery, motions, and an oral hearing.  The patent owner may seek to amend the claims and the challenger may oppose the amendment.  The process must be completed by the PTAB with a final decision within one year of its institution, although it can be extended 6 months for good cause.

CBM Review should only be undertaken after a careful consideration of strategy, because estoppel applies to subsequent action by the petitioner.  The petitioner may not assert a grounds for invalidity in a subsequent PTO proceeding that was raised or reasonably could have been raised in the CBM Review, nor may the petitioner assert in a subsequent district court patent infringement case a grounds that was raised in the CBM Review.  Thus, the petitioner should be sure that CBM Review is the best process and forum for its challenge.

So far, the PTAB has moved expeditiously in administering CBM Review.  The first petition for CBM Review ever filed, on September 16, 2012, was granted in January 2013, and the PTAB issued its written decision in June 2013, less than nine months after the petition was filed and only six months after institution of review.  In its decision, the PTAB invalidated all of the challenged claims as unpatentable abstract ideas.

As of January 30, 2014, 113 petitions for CBM Review had been filed.  The majority of the petitions that have been filed are in the electrical and computer fields.  Up to the present, the PTAB has instituted CBM Review in about 85% of the petitions filed.  Of those, several cases have been settled, the PTAB has invalidated several patents, and many cases are still ongoing.

By: Labor & Employment

Last year, the Supreme Court finally clarified the long open question: “Who is a Supervisor under Title VII?” As discussed in our previous post, in Vance, the Supreme Court held that a supervisor is someone who is “empowered by the employer to take tangible employment actions” against a complaining employee. Essentially, a “supervisor” – or someone who can subject an employer to vicarious liability – is someone who can hire, fire, or discipline an employee. The Vance decision was a step in the right direction for employers.

However, members of the House and Senate recently introduced legislation that would effectively overturn the Vance decision. The Fair Employment Protection Act (H.R. 4227, S. 2133) seeks to correct “the error in the Vance decision” and redefine “supervisors” more broadly as those who are “in charge of an employee’s daily work activities.” The Act’s fact sheet says this proposed definition is “consistent with years of EEOC guidance on employer liability and has been endorsed by many of the nation’s largest civil rights and labor organizations.”

Given the divided Congress, whether this bill will pass remains to be seen. We will continue to monitor and post regarding this legislation should it move forward this term.

The U.S. District Court for the Central District of California handed a big victory to Warner Bros. when it ruled that Gotham Garage violated Warner Bros.’ intellectual property rights in the iconic Batmobile. There was a question whether Warner Bros.’ rights in the Batman franchise would prohibit the production of an automobile designed like the Batmovile since the Copyright Act does not protect automobile designs. The Court found that the Batmobile was a protectable character of the Batman franchise and the replicas manufactured by defendant were infringing derivative works.

Gotham Garage manufactured and produced custom cars modeled after vehicles found in various television shows and movies. It had been producing and selling replica vehicles based on the 1966 and 1989 Batmobiles. Gotham Garage also manufactured automobile parts featuring the Batman trademarks and did business in a manner utilizing various Batman trademarks. Warner Bros. filed a lawsuit In May 2011 alleging that Gotham Garage infringed the copyrighted versions of the 1966 and 1989 Batmobile and infringed various Batman trademarks in the marketing and selling of its custom vehicles.

The court made easy work of the trademark claims. The Court noted that Gotham Garage did not contest Warner Bros.’ trademark claims, and did not dispute that it manufactured and distributed parts and accessories featuring the Batman trademarks and used the Batman trademarks in connection with the operation of its business. The Court found that Gotham Garage’s use of the Batman trademarks caused a likelihood of confusion; that consumers were likely to be confused as to the source of the products. The defendant admitted that “most of his potential customers ask if he had a relationship with Warner Bros. or was licensed by Warner Bros.” The Court found that this initial interest and confusion impermissively capitalizes on the goodwill associated with the Batman trademarks.

As to the plaintiffs copyright claim, the defendants claimed that the Batmobile automobile designs that were allegedly infringed are were copyrightable. The defendant argued that vehicle designs are not copyrightable, and neither are the separate, functional parts of the automobile such as wheels, fins and fenders. Under the copyright act, a “useful article” is not entitled to copyright protection. Items that are normally a part or component of a useful article are themselves considered “useful articles”. And so, the defendant argued, any part of the Batmobile allegedly infringed that normally is found on cars such as wheels, fins, and fenders are, by definition, a useful article and not protected by copyright.

The Court found other grounds to support plaintiff’s copyright claim. The Court noted that the owner of a copyright a work embodying a character can acquire copyright protection in the character itself. In determining whether copyright protection may be afforded to characters visually depicted in a television series or in a movie, the Ninth Circuit employed the standard known as the character delineation test. If a character is “especially distinctive” or constitutes “the story being told”, the character is entitled receive protection apart from the work in which the character appears. The Court noted that characters that have received copyright protection, Godzilla and Rocky Balboa, have displayed consistent, widely identifiable traits.

The Court then noted the Ninth Circuit reviewed, but did not resolve, whether or not a car known as “Eleanor” that appeared as a 1971 Fastback Ford Mustang in the 1974 film, Gone in 60 Seconds, was entitled to copyright protection. In 2000, Walt Disney Productions released a remake of Gone in 60 Seconds that featured the “Eleanor” vehicle, but this time the vehicle was a 1967 Shelby GT-500. The Ninth Circuit noted that the “Eleanor” character displayed “consistent, widely identifiable traits” and can be seen as more akin to a comic book character than a literary character.” The Ninth Circuit remanded to the district court to determine whether Eleanor’s physical and conceptual qualities, and unique elements of expression qualify Eleanor for copyright protection.

The Batmobile is akin to the “Godzilla” character the Court reasoned. Although Godzilla assumed many shapes and personalities in the various Godzilla films, the Court found that “Godzilla has developed a constant set of traits that distinguish him/her/it from other fictional characters,” meriting it copyright protection.

The Court found that the Batmobile is “sufficiently delineated” to constitute a character entitled to copyright protection. The Court rejected defendant’s argument that the Batmobile is not a character because it is also a car; the central question is not whether the “character” is an object, but rather whether the character conveys a set of distinct characteristics which the Batmobile clealy does. After finding the The Batmobile to be a separately protectable character in plaintiffs work, the court made easy work of finding the defendants reproductions to be infringing derivative works.

By Agricultural Law

DTSC on Thursday March 13, 2014 announced the first three Priority Products under the Green Chemistry Regulations.  The manufacturers of these products that sell into California are now on a regulatory time schedule to try to find alternatives to the use of the identified chemicals in the specified products.  We have set out this timetables from some of our prior blogs below.

The three products include children’s foam padded sleeping products containing TDCPP (chlorinated Tris), Spray polyurethane foam systems containing unreacted diisocyanates, and paint strippers containing methylene chloride.  A Priority Product is a consumer product that contains one or more chemicals – known as Candidate Chemicals – that have a hazard trait that can harm people or the environment. A proposed list of three product-chemical combinations was released on March 13, 2014.

The following is information that was provided in one of our prior blogs.

Sixty days after a product has been included on the Priority Products List, the entity responsible for the distribution of product (“Responsible Entity, RE”) must notify DTSC, and submit a Preliminary Alternatives Analysis Report (“Preliminary Report” (or “Alternatives Analysis”). The report is to be submitted no later than 180 days after the product’s listing.

If the Preliminary Report is accepted, the RE has 12 months to submit a Final Alternatives Analysis Report (“Final Report”). The report is reviewed by the DTSC to see if the conclusions in the report are supported by the date and that the chemical was properly reviewed. DTSC is to  consider the following factors; alternatives that avoid or reduce adverse impacts through redesign of the product or the process;  the degree the proposed report can addresses the potential adverse impacts; the ability of the ultimate user to understand information or directions provided with the Responsible Entity; and the cost of the alternatives.

The DTSC then determines whether additional actions are required to protect health and/or the environment. DTSC can require a number of alternative actions including the provision of additional information, restrictions on use, requiring additional safety provisions.  An analysis can be avoided if the product is longer distributed in California, if  the chemicals of concern have been removed from the product without the use of any replacement chemicals; the chemicals have been removed from the project or the substitute chemical is already being used by another manufacturer in the same product.  Consumer product manufacturers have the primary responsibility to comply with these regulations, if however a manufacturer is not in compliance, the duty falls on the importer upon notice of noncompliance of the manufacturer from DTSC. If both manufacturer and importer fail to comply, the responsibility then falls on the assembler or retailer once DTSC posts a notice on its website. To avoid criminal and civil penalties of up to $25,000 per violation, businesses in all levels of the supply chain need to prepare for compliance with the Green Chemistry regulations.

What should manufacturers and distributors be doing?

Although it is unlikely that a Company will be immediately effected, it should be checking the list with their supply chain vendors and suppliers to assure that they are aware of these requirements.  The regulations have short timelines, and these timelines will be critical as Priority Product Lists are published. Having those discussions now may help companies in the supply chain understand how the regulations may affect their businesses indirectly. Additionally suppler contracts should be revised to include warranties  and representation regarding compliance.

Last month this blog reported on an ordinance passed by the San Francisco Board of Supervisors that would ban the use of criminal history checkboxes from employment applications for employers in San Francisco.  Employers statewide should note, however, that a new law became effective January 1, 2014 that adds further limitations on what information an employer can obtain concerning an applicant’s criminal history on a job application.  Governor Brown signed Senate Bill 530 which amended section 432.7 of the Labor Code.  Prior to this amendment, that section prohibited public and private employers from requesting potential hires to disclose (or from considering as a factor for purposes of determining whether to hire) an applicant’s criminal history that: (1) did not result in a conviction; or (2) was related to a referral to a pre/post trial diversion program (i.e., certain drug offenses).  Under this new law, employers are now prohibited from inquiring into any conviction that has been judicially dismissed, sealed and/or expunged.

Employers found to have violated this section may be liable to the potential hire for a monetary penalty.  They may also be subject to paying the reasonable attorney’s fees of any potential hire who brings an action under this section.

Given this change, employers are cautioned that they should revisit their hiring materials, especially job applications, to determine whether they remain in conformity with this new law.  Employers may want to seek the assistance of legal counsel to see if they wording on their applications regarding criminal history satisfies the new requirements of Labor Code section 432.7.

By Agricultural Law

The Office of Environmental Health Hazard Assessment (OEHHA) under the auspices of Governor Brown’s declaration in May 2013 (after a failed legislative effort)  that he would further reform Prop 65, last week OEHHA released the proposed regulations with respect to Prop 65 warnings. Regulations can be found here.  A workshop is scheduled for April 14, 2014. We would encourage all interested parties to appear and comment.

The legislative effort last year was stalemated by the struggle between the industry, environmental interests and the Prop 65 Plaintiff’s bar, which is not necessarily the same group.

 The new proposals have the potential to actually create more litigation, as to date the majority of the litigation has not been related to warning content.

Further the proposals seem to have more in common with the non-industry view of warnings.  There is some relief for small retailers, but they are not the major targets of  litigation.

OEHHA descibes the proposal as:

The proposal would establish 3-5 minimum required elements for warnings:

1. Use of the signal word “WARNING”;

2. Use of the word “expose” to be consistent with the language in the statute;

3.The standard (Globally Harmonized System) pictogram for toxic hazards (only for consumer products other than foods, occupational and environmental warnings);

4. Disclosure of the names of up to 12 commonly-known chemicals that require warnings, such as lead and mercury, in the text of the warning;

5. A link to a new OEHHA website to allow the public to access more information relating to the warning, including additional chemicals, routes of exposure, and if applicable, any actions that individuals could take to reduce or avoid the exposure.

As to food manufacturers rather then dealing with the hot potato issue with respect to “naturally occurring” the new regulations state:

(a) The warning message for food products shall be provided via one or more of the methods specified in 25607.3 and, except where warnings provided directly on the product’s labeling, shall include, at a minimum, all the following elements: (1) The word “WARNING” in all capital letters and bold print.

(2) For products that cause exposure to a listed carcinogen, the words “Consuming this product will expose you to a chemical known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.”

(3) For exposures to listed reproductive toxicants, the words “Consuming this product will expose you to a chemical known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.”

(4) For exposures to chemicals listed as carcinogens and reproductive toxicants, the words “Consuming this product will expose you to a chemical [or chemicals] 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.”

(5) The name of the chemical or chemicals if listed in section 25605.

(b) Except where prohibited by federal law on-product food label warnings may be provided as specified below. The text of the message shall be enclosed in a box and shall include the name of the chemical or chemicals listed in section 25605 where a warning is required for such exposure.

(1) For products that cause exposure to a listed carcinogen: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Cancer Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov.

(2) For products that cause exposures to a listed reproductive toxicant: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Reproductive Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov.

(3) For products that cause exposures to both a listed carcinogen and a reproductive toxicant: (A) The word “WARNING” in all capital letters, in bold print no smaller than 10 point type. (B) The words “Cancer and Reproductive Hazard” in no smaller than 8 point type. (C) The phrase “Will expose you to [chemical name]” where such  chemical name is required to be listed under section 25605. (D) The Uniform Resource Locator: www.P65Warnings.ca.gov. (c) Supplemental information may be provided in the warning in addition to the basic elements required in subsection (a), including, but not limited to the following: (1) The manner in which the chemical is formed, occurs in or is added to the food. (2) Information concerning other sources of exposure to the listed chemical. (3) The primary population of concern, such as children or pregnant women. (4) References to governmental information such as advice from the federal Food and Drug Administration. (5) In no case shall such additional information dilute or negate the warning provided pursuant to Health and Safety Code section 25249.6. (d) Where the Lead Agency has adopted a chemical, product or location-specific warning as provided in Section 25607 that address the exposure in question, the business may use that warning.

NOTE: Authority cited: Section 25249.12, Health and Safety Code. Reference: Sections 25249.6 and 25249.11, Health and Safety Code.