News & Events / California Considers Revisions to Proposition 65 Warning Requirements
California Considers Revisions to Proposition 65 Warning Requirements
Beveridge & Diamond, P.C., April 28, 2014
The California Office of Environmental Health Hazard Assessment (“OEHHA”) issued a pre-regulatory proposal for new regulations that would change the requirements for warnings provided under Proposition 65 for exposures to certain chemicals identified by the State to cause cancer or reproductive toxicity. The “informal” pre-regulatory draft, if adopted as proposed, would overhaul the requirements relating to Proposition 65 warnings for manufacturers, retailers, and service-providers doing business in the State. Notably, the proposal would require warnings to specify certain listed chemicals, mandate specific warning language for certain exposure scenarios, and require businesses to submit extensive product and exposure-related information to OEHHA. The comment period on the pre-regulatory draft will be open until 5:00 PM PDT on Friday, June 13, 2014.
During a April 14, 2014 Pre-Regulatory Workshop, OEHHA stated that the aim of the regulatory revision is to provide clarity to businesses regarding their compliance obligations under Proposition 65 and to provide more meaningful warnings to the public. OEHHA acknowledged that the proposal as drafted would impose significant new burdens on businesses. A number of stakeholders expressed concern that the pre-regulatory draft introduces complexities that may become compliance pitfalls and increase the risk of private litigation. OEHHA representatives emphasized that the pre-regulatory proposal is the agency’s first attempt at improving the Proposition 65 warning requirements and that the text of the regulation may change substantially prior to the initiation of formal rulemaking (anticipated in Summer of 2014).
The pre-regulatory proposal was released by OEHHA on March 7, 2014, the week before the California Department of Toxic Substances Control(“DTSC”) announced its initial draft “priority products” under the State’s Safer Consumer Products regulations. Together with DTSC’s new Safer Consumer Products framework, OEHHA’s potential revision of the Proposition 65 warning regulations signals a strong focus by California regulators related to reducing potential consumer exposures from chemicals in products. The full text of the pre-regulatory proposal, and other information about OEHHA’s rulemaking process, is available here.
Proposition 65 Background—Existing Warning Requirements
California’s Proposition 65 requires OEHHA to publish a list of chemicals known to the State to cause cancer or developmental or reproductive toxicity. The law requires businesses offering products or services in California that would expose a person to a listed chemical above a safe level to provide a warning prior to such exposure. OEHHA’s current Proposition 65 regulations identify “safe harbor” levels of exposure for some of the chemicals listed and establish a process pursuant to which businesses may calculate an estimated safe harbor level in the absence of such an undertaking by OEHHA.
Key Changes in OEHHA’s Pre-Regulatory Proposal
The pre-regulatory proposal includes several new and expanded obligations, including the following:
If adopted, the pre-regulatory proposal could change the strategies that businesses use to comply with Proposition 65. Under existing regulations, some businesses that supply products containing a listed chemical have found it prudent, in light of uncertainties regarding consumer use patterns and exposure thresholds, to simply provide a Proposition 65-compliant warning rather than undertake a costly exposure assessment to demonstrate that the product or service does not pose a significant health risk. This would likely change under the pre-regulatory proposal, which would require businesses providing warnings to generate, analyze and report detailed information to OEHHA concerning the “pathways” of exposure to listed chemicals found in products and services.
If you have questions regarding how to submit comments or how changes to the Proposition 65 warning regulations may affect your business, please contact Laura Duncan (Principal) at (415) 262-4003, Lduncan@bdlaw.com; Gary Smith (Principal) at (415) 262-4045, Gsmith@bdlaw.com; or Lauren Hopkins (Associate) at (415) 262-4013, Lhopkins@bdlaw.com. This client alert was prepared with the assistance of San Francisco Associate, Andrew Mayer.
Click here for a PDF of this news alert.
 On April 16, 2014, OEHHA extended the public comment period from May 14, 2014 to June 13, 2014.